F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 23 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 01-4187
v. (D.C. No. 00-CR-436-G)
(D. Utah)
GARRY WHITTAKER,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, BALDOCK, and BRISCOE, Circuit Judges.
Defendant-Appellant Garry Whittaker was convicted by a jury of one count
of possession of a firearm after being convicted of a misdemeanor crime of
domestic violence, in violation of 18 U.S.C. § 922(g)(9) (Count I), and one count
of possession of methamphetamine with intent to distribute, in violation of 21
U.S.C. § 841(a)(1) (Count II). He was sentenced to a term of imprisonment of 72
months to be followed by a term of supervised release of 48 months.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
On appeal, Mr. Whittaker argues that (1) the district court erred by failing
to determine whether he understood and assented to a stipulation underlying his
conviction on Count I, and (2) the evidence of intent to distribute in Count II was
insufficient. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
Background
After receiving information suggesting that Mr. Whittaker was involved in
illegal drug distribution, police executed a search warrant at his residence on
September 13, 2000. They discovered various items of drug paraphernalia,
including a marijuana pipe, used syringes, several plastic ziplock bags similar to
those commonly used by drug dealers to distribute small quantities of
methamphetamine, and a bag believed to contain red phosphorus (a chemical used
in making methamphetamine). II R. at 193-96, 203-05.
While the search was in progress, Mr. Whittaker arrived at his residence as
a passenger in a car driven by third party. The police searched Mr. Whittaker
pursuant to the warrant and discovered a loaded firearm magazine, a container of
27 grams of recently manufactured methamphetamine, and another container of
half a gram of methamphetamine. Id. at 210, 213-14; IV R. at 83-84, 113-14.
The police also discovered a 9-mm pistol containing a chambered round on top of
items in the trunk of the car. II R. at 215, 229. The weapon was accessible from
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the passenger compartment, IV R. at 13-14, and was designed to operate with the
magazine found on Mr. Whittaker. II R. at 222-23. The rounds in the magazine
matched the round chambered in the weapon. Id. at 229.
To expedite the trial, the parties agreed in principle to stipulate that Mr.
Whittaker, prior to his arrest in this case, had been convicted of a misdemeanor
crime of domestic violence such that 18 U.S.C. § 922(g)(9) would apply to
prohibit him from possessing a firearm. II R. at 6-10. During the preliminary
discussion of this issue between counsel for the parties and the court, Mr.
Whittaker’s counsel made it clear that he wanted the stipulation to refer simply to
a misdemeanor conviction and to be phrased “as neutrally as possible” to “keep[]
out the pe[]jorative terms of assault, battery and those kind of things.” Id. at 9.
The prosecution agreed to draft the stipulation as Mr. Whittaker’s counsel
requested. Id. at 9-10.
At trial two days later, counsel for the United States moved for the
admission of the stipulation conforming to the earlier agreement. V R. at 4.
When the court inquired whether counsel for Mr. Whittaker had examined the
stipulation, he responded that he had reviewed it and had no objections to it. Id.
Thereafter, the prosecution read the stipulation into the record in open court. In
pertinent part, it stated that prior to May 16, 2001, Mr. Whittaker “was convicted
of a misdemeanor crime of domestic violence in a court of law, and as such, is
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restricted from possessing a firearm or ammunition” pursuant to 18 U.S.C. §
922(g)(9). Id. at 5. After the entire stipulation was put on the record, the court
admitted it into evidence; neither Mr. Whittaker nor his counsel raised an
objection. Id. at 5-6.
Later in the trial, the court provided proposed jury instructions to the
parties for their review. Instruction 20, which dealt with the required elements of
proof for Count I, reiterated that the parties had stipulated to Mr. Whittaker’s
prior conviction of a misdemeanor crime of domestic violence. I R., Doc. 69 at
22. After conferring with Mr. Whittaker, his counsel stipulated to the jury
instructions with no objections. V R. at 69. Later, while arguing a motion for
judgment of acquittal, Mr. Whittaker’s counsel again confirmed his client’s
agreement with the stipulation. Id. at 141. At the close of the trial the court
instructed the jury that they were bound by the stipulation. Id. at 194-95.
During the trial, the prosecution presented evidence to support the
inference that Mr. Whittaker possessed the methamphetamine not with intent to
consume personally but with intent to distribute. The evidence included
testimony: (1) that quantities of methamphetamine consistent with personal use
are usually under two grams, IV R. at 105; (2) that the drug is most often sold in
one gram, half-gram or quarter-gram amounts, id. at 110; (3) that addicts rarely
stockpile personal stashes because they cannot afford it, they lack foresight, and
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doing so is inconsistent with the idea of quitting, II R. at 197; IV R. at 114-15;
(4) that a typical dosage unit is a quarter-gram, IV R. at 109; (5) that the heaviest
users might be able to use a maximum of two grams per day for only a couple of
days, id.; and (6) that the 27 grams found on Mr. Whittaker constituted over one
hundred quarter-gram doses and is consistent with distribution. Id. at 113-114.
Mr. Whittaker testified that he intended to hoard the drugs for his own use
and that he had no intention to distribute them. V R. at 116, 121. At the
conclusion of the trial the court denied Mr. Whittaker’s motion for judgment of
acquittal and submitted the case to the jury. Id. at 141-43. The jury returned a
verdict of guilty on Counts I and II. I R., Doc. 71.
Discussion
Because Mr. Whittaker did not object to the stipulation at trial, the parties
agree that we review Mr. Whittaker’s first claim only for plain error. United
States v. Mejia-Alarcon, 995 F.2d 982, 991 (10th Cir. 1993); Aplt. Br. at 12;
Aplee. Br. at 11. To obtain a conviction against Mr. Whittaker on Count I, one
element of proof the prosecution had to establish was that Mr. Whittaker was a
person “who ha[d] been convicted in any court of a misdemeanor crime of
domestic violence.” 18 U.S.C. § 922(g)(9).
Although a defendant has a right under the Fifth and Sixth Amendments to
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have a jury determine guilt beyond a reasonable doubt on every element of a
charged offense, United States v. Gaudin, 515 U.S. 506, 509-10 (1995), the
defendant may stipulate to elemental facts and waive the right on any given
element. United States v. Mason, 85 F.3d 471, 474 (10th Cir. 1996). We have
observed that where the defendant was present in court and represented by
counsel at the time of the stipulation, it does not constitute plain error for a
district court to fail to address the defendant directly before accepting the
stipulation in order to ascertain that the stipulation had a factual basis and was
understood and entered into voluntarily by the defendant. Mejia-Alarcon, 995
F.2d at 991. Given the facts surrounding the stipulation here, we perceive
nothing that constitutes plain error.
Even were we to agree with Mr. Whittaker’s understanding of the holdings
in Hawkins v. Hannigan, 185 F.3d 1146, 1155 (10th Cir. 1999) and Johnson v.
Cowley, 40 F.3d 341, 346 (10th Cir. 1994), we are still faced with a record that
contains nothing to suggest that the stipulation in its final form was entered into
against Mr. Whittaker’s will or that he disagreed with it or did not want it
entered. Mr. Whittaker’s attempts to characterize the preliminary discussions on
the stipulation as indicative of his “reservations” about the stipulation in its final
form cannot be credited in light of the entire record. Aplt. Br. at 17. Mr.
Whittaker’s dubious understanding of his own record might also explain his
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misplaced reliance on our unpublished decision in United States v. DeWilliams,
28 Fed. Appx. 913 (10th Cir. 2001), where the record could scarcely have been
clearer that the defendant did not wish to stipulate.
We review de novo Mr. Whittaker’s claim that the evidence was not
sufficient to support the jury verdict on the intent to distribute element of Count
II. See United States v. Hien Van Tieu, 279 F.3d 917, 921 (10th Cir. 2002).
Evidence is sufficient to support a conviction if, viewing the evidence in the light
most favorable to the government, a reasonable jury could have found the
defendant guilty beyond a reasonable doubt. In reviewing the evidence, we do not
weigh conflicting evidence or consider witness credibility, as that duty is
delegated exclusively to the jury, and we resolve any conflicts in the evidence in
favor of the government. Id. at 921-22.
The “intent to distribute” a controlled substance is generally established
through circumstantial evidence and “may be inferred from the possession of a
large quantity of the substance.” United States v. Powell, 982 F.2d 1422, 1430
(10th Cir. 1992). The rationale for such an inference is that the defendant
possessed more of the substance than usual for personal use. Id. We have held
that evidence of defendant’s possession of 8.5 grams of methamphetamine and
testimony that this amount was consistent with distribution was enough to support
the inference. United States v. Deninno, 29 F.3d 572, 577 (10th Cir. 1994).
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The evidence adduced at trial was that Mr. Whittaker possessed over 27
grams of methamphetamine and that this amount was consistent with intent to
distribute. IV R. at 113-14. The additional evidence discussed above lends even
further support to the inference. Especially when viewed in the light most
favorable to the government, it is obvious that a reasonable jury could have found
that Mr. Whittaker possessed the methamphetamine with intent to distribute.
AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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