Judge David larimer
Police executing a search warrant at the home of a girlfriend found defendants in the master bedroom. In addition to .126 grams of cocaine, police found a box of ammunition atop a bedroom dresser. A woman's purse, containing a handgun, and a bag holding ammunition was found in the back of the bedroom's closet. Facen was convicted of each of an indictment's four counts. Partly granting Facen judgment of acquittal, district court acquitted Facen of using the premises to make, distribute and/or distribute a controlled substance, as well as of possessing a firearm in furtherance of one or both of those crimes. However, it affirmed conviction for possessing a firearm and ammunition after a prior conviction of a crime punishable by one year or more in prison. In affirming conviction for possessing cocaine base with intent to distribute, the court modified the jury's special verdict thereon to be in an amount of "28 grams or less." It was clear that one or more persons at the property possessed cocaine, in amounts suggesting intent to distribute. However, insufficient evidence sustained the jury's conclusion that Facen possessed "hidden" drugs found in shorts in the master bedroom as well as in a kitchen cabinet and microwave oven.
