United States v. Steen

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT

____________

No. 93-8857
____________

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

versus

SANDY STEEN, JR. and BERNEL RUIZ,
Defendants-Appellants.

__________________________________________________

Appeals from the United States District Court
for the Western District of Texas
__________________________________________________

(June 13, 1995)

Before POLITZ, Chief Judge, REAVLEY and EMILIO M. GARZA, Circuit
Judges.

EMILIO M. GARZA, Circuit Judge:

Sandy Steen, Jr., was convicted of possession with intent to

distribute cocaine base. See 21 U.S.C. § 841(a)(1) (1988). Bernel

Ruiz was convicted of felony possession of cocaine base. See 21

U.S.C. § 844(a) (1988). Steen and Ruiz appeal their convictions

and sentences. We affirm Steen's conviction and sentence.

Concerning Ruiz, we reverse in part, affirm in part, and remand for

resentencing.

I

On the day of the events surrounding this case, Officer Cook

of the San Antonio Police Department's Repeat Offender Program

received word that Steen, whom the police wanted on two outstanding
warrants, was on his way to Ruiz' girlfriend's apartment. Cook

observed Steen and Ruiz arrive at the apartment. Steen carried a

beige bag upstairs into the apartment.

A backup SWAT team arrived shortly thereafter; one officer

went to the back of the apartment building and two went to the

front door. The officers knocked on the door, observed a curtain

in the window move, and announced their presence. The officer in

the rear of the building radioed that "they" were throwing what

appeared to be containers of cocaine out of the apartment and into

a nearby drainage ditch.

The officers attempted to enter the apartment through the

front door, but they could not do so because a couch had been

pushed against the door. An officer asked one of the occupants to

move the couch, and he did so. The officers took both Steen and

Ruiz into custody. Steen had white powder on his hands that later

tested positive for cocaine base. Ruiz also had white powder on

his arms, but he had cut his right wrist badly, and was transported

to a hospital for treatment. Because the white powder on Ruiz was

washed away during treatment, it was not tested.

The officers found cocaine base on the apartment's carpet,

patio, and microwave oven. A broken beaker containing cocaine base

lay in the sink, and there was blood on the sides of the sink. The

officers found a triple-beam scale next to the sink. In the living

room, an officer found a loaded Llama 0.9 mm semi-automatic handgun

in a beige bag.

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 A federal grand jury indicted Steen and Ruiz, charging both

with conspiracy to possess with intent to distribute cocaine base

in violation of 21 U.S.C. §§ 841(a)(1) and 846 (1988), and

possession with intent to distribute cocaine base in violation of

21 U.S.C. § 841(a)(1). Steen was also charged with using or

carrying a firearm during the commission of a drug trafficking

offense, in violation of 18 U.S.C. § 924(c)(1).

Steen was found guilty of possession with intent to distribute

cocaine base, but he was found not guilty on the conspiracy and

firearm counts. Ruiz was found not guilty of both the conspiracy

and possession with intent to distribute counts, but the jury found

him guilty of a lesser-included offense of felony possession of

cocaine base in violation of 21 U.S.C. § 844(a).

Based on his prior felony drug convictions, Steen was

sentenced as a recidivist to life imprisonment. Ruiz was sentenced

to five years' imprisonment and three years' supervised release.

Steen and Ruiz each appeal from their conviction and sentence.

II

A

Steen argues that the district court should not have enhanced

his sentence under 21 U.S.C. § 8411 because the Government failed

to comply with the notice procedures of 21 U.S.C. § 851(a).

1
Section 841(b)(1)(A) provides that "[i]f any person commits a
violation of this [section] after two or more prior convictions for a felony drug
offense have become final, such person shall be sentenced to a mandatory term of
life imprisonment without release . . . ."

-3-
Section 851(a) states that:

No person who stands convicted of an offense under this
part shall be sentenced to increased punishment by reason
of one or more prior convictions, unless before trial, or
before entry of a plea of guilty, the United States
attorney files an information with the court (and serves
a copy of such information on the person or counsel for
the person) stating in writing the previous convictions
to be relied upon. . . . Clerical mistakes in the
information may be amended at any time prior to the
pronouncement of sentence.

21 U.S.C. § 851(a)(1) (1988). The sufficiency of a § 851(a)

information is a question of law; therefore, we review the adequacy

of the Government's compliance with § 851(a) de novo. See United

States v. Wylie, 919 F.2d 969, 972 (5th Cir. 1990) (reviewing

sufficiency of indictment or information de novo); see also infra

text accompanying note 5 (noting functional similarity of § 851(a)

information and indictment).

The Government acknowledges that the information it filed

prior to trial misstated the number of the court in which Steen had

previously been convicted and incorrectly stated that one of the

convictions was for delivery rather than possession of cocaine.

However, the Government argues that these inaccuracies amount to no

more than clerical errors that it properly corrected by amendment

prior to sentencing. Steen concedes in his reply brief that the

incorrect court number was a clerical error, but he argues that the

misstated identification of the offense renders the information

insufficient.

If the prosecution fails to comply with § 851's procedural

requirements, a district court cannot enhance a defendant's

-4-
sentence. See United States v. Noland, 495 F.2d 529, 533 (5th

Cir.) (stating that filing requirement is "a strict condition on

[§ 851's] exercise"), cert. denied, 419 U.S. 966, 95 S. Ct. 228, 42

L. Ed. 2d 181 (1974).2 We assume, without holding, that the

incorrect description was not a clerical error.3 Therefore, if

there were any material defect in the original information, the

2
See also Suveges v. United States, 7 F.3d 6, 10 (1st Cir. 1993)
(noting that "[t]he filing of such an informational notice is jurisdictional");
United States v. Belanger, 970 F.2d 416, 418 (7th Cir. 1992) ("Failure to file
the notice prior to trial deprives the district court of jurisdiction to impose
an enhanced sentence."); United States v. Weaver, 905 F.2d 1466, 1481 (11th Cir.
1990) (requiring strict compliance with procedural requirements), cert. denied,
498 U.S. 1091, 111 S. Ct. 972, 112 L. Ed. 2d 1058 (1991); United States v.
Williams, 899 F.2d 1526, 1529 (6th Cir. 1990) (holding that, because statutory
wording mandatory, court could not excuse failure to file information even though
defendant agreed prior to trial that enhanced penalty applied); H.R. Rep. No.
1444, 91st Cong., 2d Sess. (1970), reprinted in 1970 U.S.C.C.A.N. 5626, 5678
[hereinafter House Report] (stating that purpose of section is to "prescribe[]
the procedure for establishing prior convictions so as to authorize imposition
of an increased penalty upon a subsequent conviction").
3
Section 851 does not define "clerical error." However, the Federal
Rules of Civil Procedure, the Federal Rules of Criminal Procedure, and caselaw
applying those rules provide guidance on what constitutes clerical error. See
Fed. R. Civ. P. 60(a) ("Clerical mistakes in judgments, orders or other parts of
the record and errors therein arising from oversight or omission may be corrected
. . . ."); Fed. R. Crim. P. 36 ("Clerical mistakes in judgments, orders or other
parts of the record and errors in the record arising from oversight or omission
may be corrected . . . ."); see also American Trucking Ass'ns v. Frisco Transp.
Co., 358 U.S. 133, 145, 79 S. Ct. 170, 177, 3 L. Ed. 172 (1958) ("It is axiomatic
that courts have the power and the duty to correct judgments which contain
clerical errors or judgments which have issued due to inadvertence or mistake.");
Matter of West Texas Marketing Corp., 12 F.3d 497, 504 (5th Cir. 1994) ("In sum,
the relevant test for the applicability of Rule 60(a) is whether the change
affects substantive rights of the parties and is therefore beyond the scope of
Rule 60(a) or it instead a clerical error, a copying or computational mistake,
which is correctable under the Rule."); id. ("It is only mindless and mechanistic
mistakes, minor shifting of facts, and no new additional legal perambulations
which are reachable through Rule 60(a)"); Harcon Barge Co. v. D&G Boat Rentals,
Inc., 784 F.2d 665, 668-69 (5th Cir.) (en banc) (noting that scope of Rule 60(a)
is "very limited" and "[c]orrection of an error of `substantive judgment,'
therefore, is outside the reach of Rule 60(a)."), cert. denied, 479 U.S. 930, 107
S. Ct. 398, 93 L. Ed. 2d 351 (1986); Jones v. Anderson-Tully Co., 722 F.2d 211,
212 (5th Cir. 1984) (holding that clerical errors "must be in the nature of
recitation" and "not errors of substantive judgment"); Dura-Wood Treating Co. v.
Century Forest Indus., Inc., 694 F.2d 112, 114 (5th Cir. 1982) ("Rule 60(a) finds
application where the record makes apparent that the court intended one thing but
by merely clerical mistake or oversight did another. Such a mistake must not be
one of judgment or even of misidentification, but merely of recitation,
. . . mechanical in nature.").

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Government's correction was untimely and would not cure such a

defect.4 Accordingly, we limit our evaluation of the Government's

compliance with § 851(a) to the information filed prior to trial.

The question, therefore, is whether the Government's identification

of Steen's prior conviction, even with its inaccuracy, was

nonetheless sufficient to satisfy § 851(a).

This court has never specifically addressed the sufficiency of

notice in a § 851 information. However, we can look for guidance

to our evaluation of the sufficiency of notice in an indictment,

however, because "an enhancement information performs a function in

sentencing analogous to the function an indictment or information

performs in bringing the initial charges." United States v.

Garcia, 954 F.2d 273, 276 (5th Cir. 1992). That purpose, as we

have already stated, is to provide defendants with the notice

necessary to allow them to challenge the contents of the indictment

or information.5 "Practical rather than technical considerations

4
Lack of surprise due to an amended filing "carries no weight in the
face of the plain words of [§ 851(a)]." Noland, 495 F.2d at 533. Therefore, a
material error in a § 851(a) information that is not corrected prior to trial
cannot be harmless. Id.; see also Neary v. United States, 998 F.2d 563, 565 (8th
Cir. 1993) (holding that harmless error does not apply to § 851 requirements);
United States v. Olson, 716 F.2d 850, 852 (11th Cir. 1983) (holding that doctrine
of harmless error does not apply to failure to comply with § 851(a)). We note
that these cases rejecting harmless error under § 851 all dealt with the timing
of the notice, not its form. See, e.g., Noland, 495 F.2d at 532 (information
filed one day after sentencing).
5
See United States v. Nevers, 7 F.3d 59, 63 (5th Cir. 1993) (noting
that indictment is sufficient if it "describe[s] the specific facts and
circumstances surrounding the offense in question in such a manner as to inform
the defendant of the particular offense charged"), cert. denied, ___ U.S. ___,
114 S. Ct. 1124, 127 L. Ed. 2d 432 (1994); United States v. Chappell, 6 F.3d
1095, 1099 (5th Cir. 1993) ("An indictment need only charge the essential
elements of the offense, permitting the accused to prepare a defense . . . ."),
cert. denied, ___ U.S. ___, 114 S. Ct. 1232, 127 L. Ed. 2d 576 (1994); United
States v. Shelton, 937 F.2d 140, 142 (5th Cir.) ("`An indictment is sufficient

-6-
govern resolution of [indictment] challenges and we will not

reverse for minor deficiencies which do not prejudice the accused."

Chappell, 6 F.3d at 1099.

Steen argues that § 851 establishes a notice standard higher

than that which is merely constitutionally sufficient. The plain

language of § 851(a) requires that an information "stat[e] in

writing the previous convictions to be relied upon." Nowhere in

the statute, however, did Congress prescribe the form that such a

statement must take or what data would suffice. Accordingly, we

look to the statute's legislative history for further guidance.

In the Comprehensive Drug Abuse Prevention and Control Act of

1970,6 Congress substantially altered the criminal penalty

provisions for drug offenses, rejecting the former, rigid mandatory

sentencing scheme in favor of one with more flexibility and

judicial discretion.7 In the Act, Congress expressed its concern

if it contains the elements of the offense charged, fairly informs the defendant
what charge he must be prepared to meet . . . ." (quoting United States v.
Gordon, 780 F.2d 1165, 1169 (5th Cir. 1986)), cert. denied, 502 U.S. 990, 112 S.
Ct. 607, 116 L. Ed. 2d 630 (1991); United States v. Boyett, 923 F.2d 378, 378-78
n.1 (5th Cir.) (declining to reverse conviction where indictment cited incorrect
statute, because "[t]he error was not one that could have reasonably misled the
defendant to his prejudice"), cert. denied, 502 U.S. 809, 112 S. Ct. 53, 116 L.
Ed. 2d 30 (1991); see also Fed. R. Crim. P. 7(c)(1) (requiring only essential
facts).
6
Pub. L. No. 91-513, 84 Stat. 1292.
7
See House Report, supra note 3, at 5627 (noting that one purpose of
bill was to "provid[e] for an overall balanced scheme of criminal penalties for
offenses involving drugs"); id. at 5630 ("The bill revises the entire structure
of criminal penalties involving controlled drugs by providing a consistent method
of treatment for all persons accused of violations."); id. at 5647-48 ("The
penalty structure set forth in the reported bill provides a flexible system of
penalties for Federal offenses . . . ."). Section 851 as enacted contains no
substantial differences from the relevant provision to which the House Report
refers.

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that the mandatory minimum sentence scheme had overpunished first

offenders and had not achieved the desired deterrent effect.8

Accordingly, Congress eliminated mandatory minimum sentences for

all except the "professional" drug offenders. Id. The

congressional discussions concerning the sentencing enhancement

provisions of the Act are scant, but one principle does emerge:

Because repeat drug offenders face significantly harsher sentences

than do first offenders, Congress intended that defendants receive

notice of the prior convictions on which the court is relying in

time for the defendants to challenge the use of those convictions.9

In order to facilitate this intent, Congress included in the Act a

requirement that the notice be given before trial, rather than

before sentencing as the previous statute had provided.10 Other

8
See House Report, supra note 3:
The severity of existing penalties, involving in many instances
minimum mandatory sentences, ha[s] led in many instances to
reluctance on the part of prosecutors to prosecute some violations,
where the penalties seem to be out of line with the seriousness of
the offense. . . . The committee feels, therefore that making the
penalty structure in the law more flexible can actually serve to
have a more deterrent effect than existing penalties.
Id. at 5636.
9
See Belanger, 970 F.2d at 418 (stating that § 851 was enacted to
satisfy due process requirement of notice and opportunity to be heard); cf.
Noland, 495 F.2d at 533 ("Provision for enhanced sentencing is a legislative
decision, and the procedure the legislature prescribes to effectuate its purpose
must be followed.").
10
Congress' original proposal, which tracked the prior statute,
provided:
[A]fter conviction of any offense under the act, the U.S. attorney
shall advise the court whether the conviction is the offender's
first or subsequent offense. If it is not the first offense, the
U.S. attorney shall file an information setting forth the offender's
prior convictions which he shall affirm or deny.
S. Rep. No. 613, 91st Cong., 1st Sess. 27 (1969). Congress chose to replace this
provision with a pretrial notice requirement.

-8-
than specifying the required timing, however, Congress did not

prescribe any other element of the notice. We therefore conclude

that a district court may enhance a defendant's sentence, as long

as the Government provides constitutionally sufficient notice of

the previous convictions through an information filed prior to

trial.11

The information filed by the Government stated the date of

conviction, the venue, and the cause number of the case for each of

Steen's prior convictions. The error occurred because the

Government described what it believed to be the charged offense,

not that to which Steen had pled guilty. This error, however,

negates the notice provided by the other listed data only if the

discrepancy misled Steen to his prejudice.12

11
See United States v. Gonzalez-Lerma, 14 F.3d 1479, 1485 (10th Cir.)
(holding information sufficient even though it did not include date and case
number of prior conviction), cert. denied, ___ U.S. ___, 114 S. Ct. 1862, 128 L.
Ed. 2d 484 (1994); Belanger, 970 F.2d at 419 (holding two-part notice to be
acceptable because it contained all necessary information and both notices were
filed before trial); United States v. Wright, 932 F.2d 868, 882 (10th Cir.)
(holding that information filed after initial indictment but not refiled after
superseding indictment was sufficient for § 851), cert. denied, 502 U.S. 962, 112
S. Ct. 428, 116 L. Ed. 2d 448 (1991).
12
See Fed. R. Crim. P. 7(c)(3) ("Error in the citations or its omission
shall not be ground for dismissal of the indictment or information or for
reversal of a conviction if the error or omission did not mislead the defendant
to the defendant's prejudice."); Nevers, 7 F.3d at 63 (noting that courts "will
not reverse a conviction because of an error in the indictment unless that error
misled the defendant to his or her prejudice"); Shelton, 937 F.2d at 143
(affirming validity of indictment where statutory basis and description provided
notice and refusing to reverse for nonprejudicial errors); United States v.
Wylie, 919 F.2d 969, 973 (5th Cir. 1990) (holding deletion of defendant's name
from codefendant's indictment is harmless if defendant not misled prejudicially);
United States v. Quintero, 872 F.2d 107, 111 (5th Cir. 1989) ("`Surplusage in an
indictment may generally be disregarded where the charge is not materially
broadened and the accused is not misled.'" (quoting United States v. Trice, 823
F.2d 80, 89 n.8 (5th Cir. 1987))), cert. denied, 496 U.S. 905, 110 S. Ct. 2586,
110 L. Ed. 2d 267 (1990); United States v. Branch, 850 F.2d 1080, 1082 (5th Cir.
1988) (holding that miscitation of statutory basis was harmless because
"[d]efendant clearly knew what illegality he was accused of having committed"),

-9-
 Although Steen did not file his § 851(c) challenge to the

Government's information until after the start of the trial,13 the

record indicates that Steen challenged the admissibility of the

prior convictions in a pretrial motion. In that motion, Steen

stated that because both prior convictions were for possession

only, they were not sufficiently similar to the charged offenses to

be admissible. Steen therefore admitted that he knew that the

prior offenses that the Government intended to use were the two

prior possession convictions described in the § 851 information.

Thus, Steen himself admitted that he had notice of the prior

convictions before trial, and that the incorrect description of the

second conviction did not mislead him. We hold that the

Government's information satisfied the sufficiency requirement

under § 851(a). See Gonzalez-Lerma, 14 F.3d at 1486 (holding

information to be sufficient because it "signalled the government's

intention to rely upon a particular prior conviction," and more

specifics were available prior to trial).

B

Steen also argues that his sentence should not stand because

the district court failed to comply with the colloquy requirements

cert. denied, 496 U.S. 1018, 109 S. Ct. 816, 102 L. Ed. 2d 806 (1989).
13
Section 851(c) prescribes the procedure by which a defendant
challenges the convictions listed in the Government's § 851(a) information. 21
U.S.C. § 851(c) (1988).

-10-
of section 851(b) of Title 21, which states that:

If the United States attorney files an information under
[section 851], the court shall after conviction but
before pronouncement of sentence inquire of the person
with respect to whom the information was filed whether he
affirms or denies that he has been previously convicted
as alleged in the information, and shall inform him that
any challenge to a prior conviction which is not made
before sentence is imposed may not thereafter be raised
to attack the sentence.

21 U.S.C. § 851(b) (1988). We have held that a district court need

not use the literal terms of § 851(b) if it is clear from the

circumstances that the defendant does not contest the validity of

his prior convictions. See Garcia, 954 F.2d at 277 (holding that

judge's questioning of defendant regarding prior convictions such

that defendant admitted validity of those convictions satisfied

§ 851(b), especially when defendant never challenged the validity

of those convictions); see also Weaver, 905 F.2d at 1482 (holding

that court's failure to specifically inquire of defendant regarding

convictions "understandable when considered in context" of

defendant's admission of validity of prior conviction and court

discussed prior convictions with defendant during review of PSI).14

Steen admitted the previous convictions in his own testimony.

Moreover, the colloquy at sentencing indicates that the district

court inquired as to whether Steen challenged the convictions:

THE GOVERNMENT: I believe that the Government has
satisfied its burden, has shown

14
Steen relies on outdated caselaw in arguing that substantial
compliance does not satisfy § 851(b). In Garcia, 954 F.2d at 276-77, this court
dismissed as dicta the commentary in United States v. Garcia, 526 F.2d 958 (5th
Cir. 1976) and United States v. Cevallos, 538 F.2d 1122 (5th Cir. 1976),
regarding the doubtful sufficiency of substantial compliance.

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 through the enhancement that Mr.
Steen is a recidivist, that he has
two prior felony drug convictions,
and we believe that Mr. Steen was
given notice of this.
The Court under 851 should call
upon Mr.Steen to either admit or
deny these two offenses. I would
argue to the Court that from the
witness stand Mr. Steen at the
course of trial admitted he had both
of these felony convictions for
possession of cocaine, but to keep
the record clear I believe that the
court should ask him to admit or
deny those offenses.
THE COURT: All right, Mr. Steen, do you have
anything you want to say?
STEEN: No, sir.
THE COURT: Did I ask him a while ago?
STEEN'S ATTORNEY: No, you didn't, Your Honor.
THE COURT: You don't have anything you want to
say?
STEEN: No, sir.

We hold that this discussion, taken in context along with Steen's

admission of the prior convictions, satisfies § 851(b). Garcia,

954 F.2d at 277; Weaver, 905 F.2d at 1482. Accordingly, the

district court did not err in enhancing Steen's sentence.15

15
Steen also argues that his sentence violated the Fifth Amendment's
guarantee of equal protection on the grounds that the higher sentencing ranges
for cocaine base as compared to cocaine powder impact blacks more severely than
whites. This argument has no merit; this Court and every other Circuit that has
addressed this argument has rejected it. See, e.g., United States v. Galloway,
951 F.2d 64, 65-66 (5th Cir. 1992); United States v. Watson, 953 F.2d 895, 898
(5th Cir.), cert. denied, ___ U.S. ___, 112 S. Ct. 1989, ___ L. Ed. 2d ___
(1992); accord United States v. Clary, 34 F.3d 709 (8th Cir. 1994), cert. denied,
___ U.S. ___, 115 S. Ct. 1172, 130 L. Ed. 2d 1126 (1995); United States v.
Stevens, 19 F.3d 93, 97 (2d Cir. 1994); United States v. Frazier, 981 F.2d 92,
95 (3d Cir.), cert. denied, ___ U.S. ___, 113 S. Ct. 1661, 123 L. Ed. 2d 279
(1993); United States v. D'Anjou, 16 F.3d 604, 612 (4th Cir.), cert. denied, ___
U.S. ___, 114 S. Ct. 2754, 129 L. Ed. 2d 871 (1994); United States v. Reece, 994
F.2d 277, 278-79 (6th Cir. 1993); United States v. Scott, 19 F.3d 1238, 1246 (7th
Cir.), cert. denied, ___ U.S. ___, 115 S. Ct. 163, 130 L. Ed. 2d 101 (1994);
United States v. Chandler, 996 F.2d 917, 918 (7th Cir. 1993); United States v.
Lawrence, 951 F.2d 751 (7th Cir. 1991);United States v. Harding, 971 F.2d 410,
413-14 (9th Cir. 1992), cert. denied, ___ U.S. ___, 113 S. Ct. 1025, 122 L. Ed.
2d 170 (1993); United States v. Turner, 928 F.2d 956, 959-60 (10th Cir.), cert.

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 C

Steen lastly argues that the absence of African-Americans from

his jury violated his constitutional right to a jury that fairly

represented a cross-section of the community.16 The Supreme Court

has held that:

In order to establish a prima facie violation of the
fair-cross-section requirement, the defendant must show
(1) that the group alleged to be excluded is a
`distinctive' group in the community; (2) that the
representation of this group in venires from which juries
are selected is not fair and reasonable in relation to
the number of such persons in the community; and (3) that
this underrepresentation is due to systematic exclusion
of the group in the jury selection process.

Duren v. Missouri, 439 U.S. 357, 364, 99 S. Ct. 664, 668, 58 L. Ed.

2d 579 (1979); see also Powers v. Ohio, 499 U.S. 400, 404, 111 S.

Ct. 1364, 1367, 113 L. Ed. 2d 411 (1991) ("Although a defendant has

no right to a `petit jury composed in whole or in part of persons

of [the defendant's] own race,' he or she does have the right to be

tried by a jury whose members are selected by nondiscriminatory

criteria." (quoting Strauder v. West Virginia, 100 U.S. 303, 305,

denied, 502 U.S. 801, 112 S. Ct. 230, 116 L. Ed. 2d 187 (1991); United States v.
Solomon, 848 F.2d 156, 157-58 (11th Cir. 1988); United States v. Cyrus, 890 F.2d
1245, 1248 (D.C. Cir. 1989). Steen contends that he raises a different theory,
that is, that Congress exhibited discriminatory intent in enacting the statute
as a result of "unconscious racism." We find no merit in these argument. See
Galloway, 951 F.2d at 66 (rejecting argument that Congress had discriminatory
intent).

16
During voir dire, Steen's counsel objected to the initial panel of
thirty persons on the grounds that no African-Americans had been included. The
jury pool of approximately fifty persons had included one African-American, but
the random selection of the initial panel had not included this person. The
court responded that it could either overrule the objection or add the African-
American venireperson to the initial panel. Counsel for the Government objected,
stating that adding anyone arbitrarily to the panel would violate the statutory
requirement that the panel be selected at random.

-13-
10 Otto 303, 305, 25 L. Ed. 664 (1880)).

Steen contends that his jury pool did not reasonably reflect

the racial composition of the community. "[I]n holding that petit

juries must be drawn from a source fairly representative of the

community we impose no requirement that petit juries actually

chosen must mirror the community and reflect the various

distinctive groups in the population. Defendants are not entitled

to a jury of any particular composition . . . ." Taylor v.

Louisiana, 419 U.S. 522, 538, 95 S. Ct. 692, 702, 42 L. Ed. 2d 690

(1975). In the relevant community, African-Americans account for

3.95% of the eligible population. This corresponds to 1.89 persons

in a jury pool of the same size as formed in this case, and there

was actually one African-American in the jury pool.

We need not decide whether the jury pool in this case

reasonably mirrors the racial composition of the community, because

Steen fails to satisfy the third Duren element. Steen does not

provide any evidence of systematic exclusion of African-Americans

from the jury selection process. See United States v. Lopez, 588

F.2d 450, 451-51 (5th Cir.) (requiring showing that "the exclusion

of a particular minority group from jury service is due to some

form of intentional discrimination"), cert. denied, 442 U.S. 947,

99 S. Ct. 2895, 61 L. Ed. 2d 319 (1979). Indeed, we find no basis

in the record to support even Steen's assertion that the prosecutor

excluded African-Americans from this jury on account of their

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race.17

III

A

Ruiz first contends that he was not properly convicted of

felony possession of cocaine base. Although the jury found him not

guilty of possession with intent to distribute cocaine base, they

found him guilty of felony possession as a lesser-included offense.

Ruiz contends that his conviction under the third sentence of

section 844(a) was legally insufficient as a lesser-included

offense of section 841(a)(1), under which he was charged.

"The district court may give a lesser included offense

instruction if, but only if, (1) the elements of the offense are a

subset of the elements of the charged offense, and (2) the evidence

at trial permits a jury to rationally find the defendant guilty of

the lesser offense yet acquit him of the greater." United States

v. Deisch, 20 F.3d 139, 142 (5th Cir. 1994). Accordingly, the

district court in this case properly gave the § 844(a) lesser-

included-offense instruction "only if all of the elements of simple

possession pursuant to section 844 were also elements of possession

with intent to distribute pursuant to section 841(a)(1)." Id. at

17
The record reflects that the prosecutor objected to the addition of
the African-American venireperson to the jury panel because such an arbitrary
procedure would violate statutory random-selection requirements. See 28 U.S.C.
§ 1861 (1988) ("It is the policy of the United States that all litigants in
Federal courts entitled to trial by jury shall have the right to grand and petit
juries selected at random from a fair cross section of the community in the
district or division wherein the court convenes."); United States v. Kennedy, 548
F.2d 608, 610-11 (5th Cir.) (holding that use of volunteers or other arbitrary
selection methods violated statutory requirement of random jury pool selection),
cert. denied, 434 U.S. 865, 98 S. Ct. 199, 94 L. Ed. 2d (1977).

-15-
143. In Deisch, this Court held that felony possession under

§ 844(a)18 requires that the substance at issue be cocaine base and

consequently includes an element not included in § 841(a)(1).19

Accordingly, felony possession under § 844(a) cannot be a lesser-

included offense of § 841(a)(1), "even if, as here, the indictment

alleges that the controlled substance is cocaine base," id. at 152,

and, as the Government acknowledges, Ruiz' felony conviction cannot

stand. However, "simple possession of cocaine, contrary to the

first sentence of section 844(a),20 may be a lesser included offense

under a charge of possessing cocaine with intent to distribute it

contrary to section 841(a)(1)," id. As in Deisch, our reversal of

Ruiz' felony conviction "does not require that we set aside the

jury's verdict which necessarily found [the defendant] guilty of a

violation of the first sentence of section 844(a)." Id.

Accordingly, as in Deisch, we remand for resentencing for

misdemeanor possession of a controlled substance.21

18
The third sentence of § 844(a) states the felony possession offense:
"[A] person convicted under this subsection for the possession of a mixture or
substance which contains cocaine base shall be imprisoned not less than 5 years
. . . ."
19
Section 841(a)(1) provides that "it shall be unlawful for any person
knowingly or intentionally . . . to possess with intent to . . . distribute
. . . a controlled substance."
20
The first sentence of § 844(a) provides that "[i]t shall be unlawful
for any person knowingly or intentionally to possess a controlled substance
. . . ."
21
Our remand to resentence Ruiz for misdemeanor possession renders moot
his arguments that (1) the quantity of cocaine is an element of the felony
possession offense, (2) the general verdict on felony possession was
insufficient, and (3) the district court improperly sentenced Ruiz for a § 844(a)
felony possession violation.

-16-
 B

Ruiz also argues that the evidence was not sufficient to

convict him of misdemeanor possession of a controlled substance.

We will affirm such a conviction if any reasonable jury could have

found each essential element of the offense beyond a reasonable

doubt. United States v. Flores-Chapa, 48 F.3d 156, 161 (5th Cir.

1995). In making this determination, we "view[] the evidence and

the inferences that may be drawn from it in the light most

favorable to the verdict." United States v. Harris, 25 F.3d 1275,

1279 (5th Cir.) (quoting United States v. Sparks, 2 F.3d 574, 579

(5th Cir. 1993), cert. denied, ___ U.S. ___, 114 S. Ct. 899, 127 L.

Ed. 2d 91 (1994))), cert. denied, ___ U.S. ___, 115 S. Ct. 458, 130

L. Ed. 2d 366 (1994). Moreover, we accept all credibility choices

that support the jury's verdict, Harris, 25 F.3d at 1279, letting

jurors "use their common sense and apply common knowledge,

observation, and experience gained in the ordinary affairs of life

when giving effect to the inferences that may reasonably be drawn

from the evidence," Flores-Chapa, 48 F.3d at 161. The elements of

the misdemeanor possession offense under § 844 are 1) knowing, 2)

possession, 3) of a controlled substance. Deisch, 20 F.3d at 144-

45. Ruiz challenges the possession and knowledge elements,

conceding that cocaine base is a controlled substance.

Ruiz contends that the evidence was not sufficient to prove

beyond a reasonable doubt that he possessed the cocaine base.

Constructive as well as actual possession will suffice. United

-17-
States v. Onick, 889 F.2d 1425, 1429 (5th Cir. 1989); United States

v. Ferg, 504 F.2d 914, 916 (5th Cir. 1974). "Constructive

possession is defined as ownership, dominion, or control over

illegal drugs or dominion over the premises where drugs are found."

Onick, 889 F.2d at 1429.22 Either direct or circumstantial evidence

can support a finding of possession. Onick, 889 F.2d at 1429;

Ferg, 504 F.2d at 916.

Ruiz argues that he was merely present at the apartment and

thus did not possess the cocaine base. While presence alone cannot

sustain a conviction,23 Ruiz was more than merely present. During

the events at issue, Ruiz had control over the apartment. In

22
See also Flores-Chapa, 48 F.3d at 162 ("Proof of constructive
possession is sufficient; thus, any showing that the defendant exercised
ownership, dominion, or control of the drugs, or of the premises on which they
are found, will suffice."); United States v. Molinar-Apodaca, 889 F.2d 1417, 1423
(5th Cir. 1989) (defining "constructive possession as `the knowing exercise of,
or the knowing power or right to exercise dominion and control over the
prescribed substance'" (citations omitted)); Ferg, 504 F.2d at 916-17 ("In order
to establish constructive possession, the government must produce evidence
showing ownership, dominion, or control over the contraband itself or the
premises or vehicle in which the contraband is concealed."); United States v.
Martin, 483 F.2d 974, 974-75 (5th Cir. 1973) ("To establish constructive
possession, however, there must be proof of dominion and control.").
23
United States v. Cordova-Larios, 907 F.2d 40, 42 (5th Cir. 1990)
("Mere presence in the area where drugs are found is insufficient to support a
finding of possession."); United States v. Sandoval, 847 F.2d 179, 185 (5th Cir.
1988) ("[W]e have not hesitated to reverse a conviction when the evidence has
shown only that the defendant ran with bad company . . . ."); United States v.
Cardenas, 748 F.2d 1015, 1019-20 (5th Cir. 1984) ("To find constructive
possession, however, more evidence than mere physical proximity of the defendant
to the controlled substance is required."); United States v. Gordon, 700 F.2d
215, 216-17 (5th Cir. 1983) (reversing conviction where defendant only present
at scene and no additional connecting evidence); United States v. Sneed, 705 F.2d
745, 749-50 (5th Cir. 1983) (finding evidence insufficient where defendant's
father owned premises and defendant only present day before drug smuggling
occurred), abrogated on other grounds by Richardson v. United States, 468 U.S.
317, 104 S. Ct. 3081, 82 L. Ed. 2d 242 (1984); Ferg, 504 F.2d at 917 (observing
that "`mere presence in the area where the narcotic is discovered or mere
association with the person who does control the drug or the property where it
is located, is insufficient to support a finding of possession.'" (quoting United
States v. Stephenson, 474 F.2d 1353, 1355 (5th Cir. 1973))).

-18-
addition, an officer testified that Ruiz had white powder on his

arms.24 The emergency room physician also testified that he

observed a white, powdery substance on Ruiz' arms. Although the

substance observed on Ruiz was not tested, the white powder found

on Steen's hands tested positive for cocaine. Also, Ruiz's blood

was found on the sink in which the officers found a flask

containing cocaine. This evidence was more than sufficient for a

reasonable jury to find that Ruiz possessed a controlled substance.

Ruiz also contends that the evidence was not sufficient to

prove beyond a reasonable doubt that he knowingly possessed

controlled substance. "Because knowledge and intent are subjective

elements, direct proof is not required. The elements may be

inferred from the circumstances of the case." United States v.

Ledezma-Hernandez, 729 F.2d 310, 314 (5th Cir. 1984). We can infer

knowledge from suspicious circumstances that demonstrate the

defendant's consciousness of guilt. United States v. Anchondo-

Sandoval, 910 F.2d 1234, 1236 (5th Cir. 1990) (noting that while

control of storage place alone does not show knowledge, "the court

will sustain a jury's determination if other circumstances

demonstrate consciousness of guilt"). These circumstances include

nervousness and inconsistent, implausible, or fabricated

explanations for the defendant's possession of the drugs. United

States v. Carillo-Morales, 27 F.3d 1054, 1064-65 (5th Cir. 1994)

24
Ruiz argues that the testimony of the one officer who stated that he
had not seen any white powder on Ruiz' arms negates a finding of possession.
However, we view the evidence in the verdict's favor, not Ruiz'.

-19-
(noting that knowledge can be inferred from control if other

suspicious circumstances exist and that "additional factors such as

nervousness or inconsistent stories given by the defendant [can]

provide that circumstantial evidence"), cert. denied, ___ U.S. ___,

115 S. Ct. 1163, 130 L. Ed. 2d 1119 (1995); United States v.

Richardson, 848 F.2d 509, 513 (5th Cir. 1988) (holding that

inconsistent or fabricated statements indicated guilty knowledge).

Ruiz told the officers first that he cut his arm on some

dishes in the sink and later that he cut his arm with a knife, but

the evidence reflects that there were neither dishes nor a knife in

the sink. He told the emergency room physician that the white

powder was flour. Also, one of the officers testified that Ruiz

looked nervous when he came out on the porch. Moreover, cocaine

base was in plain view in the dining room and kitchen of the

apartment. This evidence is sufficient to sustain a finding of

knowledge. See Carillo-Morales, 27 F.3d at 1065 (holding evidence

sufficient where defendant was nervous, and drugs were in plain

view); Anchondo-Sandoval, 910 F.2d at 1237 (holding that

constructive possession plus inconsistent statements sufficed to

show knowing possession).25

25
We also find the totality of the evidence more than sufficient to
support Ruiz' conviction. See Cardenas, 748 F.2d at 1020 (basing sufficiency
determination not "on any one single factor, but after a careful consideration
of all the evidence together. . . . [I]n law, unlike plane geometry, the whole
may be greater than the mere sum of the parts."); see also United States v.
Stanley, 24 F.3d 1314, 1320-21 (5th Cir. 1994) (noting that court has "affirmed
convictions when the defendant's [constructive possession] is combined with
evidence that the defendant was nervous, made conflicting statements to
authorities, or related implausible stories to authorities"); Ledezma-Hernandez,
729 F.2d at 314 (same).

-20-
 C

Ruiz lastly argues that the district court erred in admitting

Steen's out-of-court statement that he was going to the apartment

to teach his "cousin" to cook crack cocaine. He contends that the

statement was hearsay and was not admissible against him.26 "[A]

prior statement of a witness who is available to testify at trial

is admissible only if it is inconsistent with his trial testimony."

United States v. Greer, 939 F.2d 1076, 1097 (5th Cir. 1991),

modified on other grounds, 968 F.2d 433 (5th Cir. 1992) (en banc),

cert. denied, ___ U.S. ___, 113 S. Ct. 1390, 122 L. Ed. 2d 764

(1993). The statement was admitted to impeach Steen, because he

had denied making any statement about crack cocaine to the officer

at the scene. Ruiz argues, however, that the district court erred

in failing to give a limiting instruction informing the jury that

they could only consider the statement as evidence against Steen.

Parties must object to errors in the district court in a

timely manner; or otherwise they risk forfeiture of the right

impinged upon by the error. United States v. Calverley, 37 F.3d

160, 162 (5th Cir. 1994) (en banc) ("[T]he failure of a litigant to

assert a right in the trial court likely will result in its

forfeiture."), cert. denied, ___ U.S. ___, 115 S. Ct. 1266, 131 L.

Ed. 2d 145 (1995). Ruiz failed to object at trial to the lack of

26
We note that, because Ruiz had the opportunity to cross-examine
Steen, Bruton v. United States does not require exclusion. See Bruton, 391 U.S.
123, 127-28, 88 S. Ct. 1620, 1623, 20 L. Ed. 2d 476 (1968) (holding that
admission of codefendant's statements violated Confrontation Clause if defendant
had no opportunity to cross-examine because codefendant did not testify).

-21-
a limiting instruction. "In exceptional circumstances, appellate

courts may, in the interests of justice, notice errors to which no

objection has been made. Such circumstances are sharply

circumscribed by the plain error standard . . . ." Id.

Accordingly, we review the district court's decision to admit

Steen's statement without a limiting instruction for plain error.

See Fed. R. Crim. P. 52(b) ("Plain errors or defects affecting

substantial rights may be noticed although they were not brought to

the attention of the court.").27

In determining whether the district court committed plain

error, we conduct a two-part analysis. United States v. Olano, ___

U.S. ___, ___, 113 S. Ct. 1770, 1777, 123 L. Ed. 2d 508 (1993).

First, we determine if there was error at all,28 and if so, whether

the error was plain29 and affected the defendant's substantial

27
See also United States v. Branch, 989 F.2d 752, 756 (5th Cir.)
(reviewing absence of jury instruction for plain error), cert. denied, ___ U.S.
___, 113 S. Ct. 3060, 125 L. Ed. 2d 742 (1993); United States v. Stafford, 983
F.2d 25, 26 (5th Cir. 1993) ("When an omission from a jury charge is raised for
the first time on appeal, we review only for plain error."); United States v.
Waldrip, 981 F.2d 799, 805 (5th Cir. 1993) (noting that if defendant does not
request a limiting instruction, appellate court determines "whether the district
court committed plain error in failing sua sponte to give the instruction").
28
Olano, ___ U.S. at ___, 113 S. Ct. at 1777 ("The first limitation on
appellate authority under Rule 52(b) is that there indeed be an `error.'"); see
also Calverley, 37 F.3d at 162 (stating that first element of analysis requires
that there be error); United States v. Rodriguez, 15 F.3d 408, 415 (5th Cir.
1994) (same).
29
Olano, ___ U.S. at ___, 113 S. Ct. at 1777 (requiring plain error and
stating that "`[p]lain' is synonymous with `clear' or, equivalently,
`obvious.'"); Calverley, 37 F.3d at 162-63 (stating that plain , `[a]t a
minimum,' contemplates an error which was `clear under current law' at the time
of trial." (quoting Olano, ___ U.S. at ___, 113 S. Ct. at 1777)).

-22-
rights.30 If a party can satisfy these requirements, the appellate

court has discretion to correct the error, but "only if the [error]

`seriously affect[ed] the fairness, integrity, or public reputation

of judicial proceedings.'" Calverley, 37 F.3d at 164 (quoting

United States v. Atkinson, 297 U.S. 157, 160, 56 S. Ct. 391, 392,

80 L. Ed. 555 (1936)); accord Rodriguez, 15 F.3d at 416.

We need not decide whether to exercise our discretion in this

case, because even if the failure to give a limiting instruction

was error, Ruiz cannot prove that the error prejudiced his

substantial rights. As we have already explained, see supra part

II.B.2, the other evidence against Ruiz was more than sufficient to

convict him. Steen's statement thus constituted cumulative

evidence, not necessary to the sufficiency of the jury's verdict.

See Waldrip, 981 F.2d at 805 (holding that admission of evidence

was not plain error because it was not "extremely damaging" in

light of other evidence against defendant). Consequently, the

district court's admission of Steen's statement without a limiting

instruction was not plain error.

IV

For the foregoing reasons, we AFFIRM Steen's conviction and

sentence. We also REVERSE Ruiz' felony conviction, AFFIRM the

30
Olano, ___ U.S. at ___, 113 S. Ct. at 1777-78 ("The third and final
limitation on appellate authority under Rule 52(b) is that the plain error
`affec[t] substantial rights.'" (quoting F.R. Crim. P. 52(b))); Calverley, 37
F.3d at 164 ("Olano counsels that in most cases the affecting of substantial
rights requires that the error be prejudicial; it must affect the outcome of the
proceeding."); Rodriguez, 15 F.3d at 415 (requiring a "specific showing of
prejudice").

-23-
jury's verdict as a misdemeanor conviction, and REMAND for

resentencing for misdemeanor possession of a controlled substance.

-24-