dissenting:
The four defendants, riding in a rental automobile in a neighborhood known for its narcotic trade, were observed and followed by Washington, D.C. police. When the defendants discovered that they were being followed, the driver, Gibbs, began to swerve in and out of parking lots, and the other occupants of the automobile were observed looking back at the policeman’s car and slinking down in their seats. The rental auto stopped suddenly beside a trash dumpster, and one of the defendants, Johnson, exited from the front seat, throwing out a loaded machine gun as he fled. Another defendant, Whitehead, exited the back seat while tossing a loaded pistol wrapped in his shirt back into the car. He struggled with the police as they arrested him. A search of the car revealed 37 rocks of crack cocaine, a loaded rifle and ammunition in the trunk of the car, and bullets for still another weapon in the glove compartment. Defendant Johnson had over $500 in small bills in his pockets. At trial, evidence was introduced linking two of the defendants to arrests for previous conduct related to the sale of drugs.
The four defendants were found guilty by a jury. The court finds no error in the evidence that was admitted, nor in the refusal of the trial court to sever the trial of Bennett, one of the defendants. The court acknowledges that the evidence was sufficient to sustain the convictions of all four defendants. Nevertheless, the court reverses the convictions and orders a new trial on the ground that the trial judge should have instructed the jury to consider the possibility that the defendants were simply out for a ride with loaded guns and 37 rocks of crack cocaine, and that their *241crime might be mere “possession” of the drugs as opposed to possession with intent to distribute. The court holds that the trial judge should have given the jury a “lesser-included offense” instruction. I dissent from the notion that the jury must be given the opportunity to do such verdict bargaining under the facts of this case.
Judicial literature is all too full of appellate judges drawing gossamer lines between instructions given and instructions sought. Reversal-wary trial judges resort to “red-book” instructions which have been given the “Good Instruction Seal of Approval” in prior cases. If the trial judge has been burned often enough, he or she will give virtually any instruction sought by either side, as long as it is found in the red book. It is not surprising that jury charges frequently sail over the jury’s comprehension. The charges more resemble a potpourri of black-letter criminal law than a statement of legal principles relevant to the case being tried. Rarely are such bloated instructions helpful to the fact-finding task for which the jury is responsible. We appellate judges might be well-advised to become wary of instruction-based appeals, and recognize that the particular nuances of a particular instruction may not be the sine qua non of a fair trial.
I recognize that the lesser-included instruction can have a more significant effect on the jury’s deliberations, and might well have led to a different result in this case. Indeed, as the court points out, the jurors sought some help in arriving at a verdict and might have grabbed at a lesser-included instruction as a way out of their internal disagreements. But the fact that the jurors found some disagreements along the way to unanimity is not a reason for giving them an inappropriate crutch. If the jury believed the facts that were presented, as apparently it did, then it was neither necessary nor proper to give a lesser-included offense instruction.
The lesser-included offense doctrine was constructed to protect against a very specific form of prosecutorial abuse. The courts recognize that if the state can prove a defendant guilty of one offense, it may be tempted to obtain a harsher punishment by charging him with a greater offense and gambling that the jury will resolve any doubts in favor of punishing the defendant. See Keeble v. United States, 412 U.S. 205, 212-13, 93 S.Ct. 1993, 1997-98, 36 L.Ed.2d 844 (1973). Accordingly, the Supreme Court has instructed that a “defendant is entitled to an instruction on a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.” Id. at 208, 93 S.Ct. at 1995 (emphasis added); see also United States v. Sinclair, 444 F.2d 888, 890 (D.C.Cir.1971). The sole question presented before this court, therefore, is whether a rational jury — considering all of the evidence— could have acquitted these defendants of possession with intent to distribute but not also have acquitted them of simple possession. In this case, I think no reasonable jury could have done so.
To acquit on possession with intent to distribute but convict on simple possession, the jury would have had to determine that there was a legitimate dispute as to the distinguishing element: the intent to distribute. See, e.g., Keeble, 412 U.S. at 213, 93 S.Ct. at 1998 (lesser-included offense instruction required where “the nature of petitioner’s intent was very much in dispute at trial”). By contrast, “refusal to give the lesser-included offense instruction is not error when defendant’s testimony is completely exculpatory and, if believed, could only lead to acquittal, and the kind of reconstruction of events needed to support a lesser charge is neither fairly inferable from the testimony nor pointed out by defense trial counsel.” Sinclair, 444 F.2d at 890 (emphasis added).
Our decision in Sinclair, is instructive. In Sinclair, the defendant was arrested by police inside a store during a looting incident. Although Sinclair was not holding any store merchandise at the time, the trial court instructed the jury on the charge of second-degree burglary, which requires proof of entry and intent to commit a crime once inside, but refused to instruct on the lesser offense of unlawful entry. We affirmed the trial court on the ground that it *242was not “fairly inferable” that the accused committed the lesser but not the greater offense. 444 F.2d at 891. The court explained that the “abstract and speculative possibilities” that the defendant entered the store merely to follow other people who had broken in (but not to loot himself), or “that the defendant took it upon himself to commit an unlawful entry because he was frightened outside,” did not provide a “reasonable basis” for the jury to conclude that he had committed only the lesser offense. 444 F.2d at 890.
The courts have also upheld a refusal to grant a lesser-included offense instruction where the defense affirmatively placed the critical element in dispute. In United States v. Young, 875 F.2d 1357, 1359 (8th Cir.1989), the defendant admitted to having struck a man with a bat but claimed that another individual who was present also hit the victim and in fact inflicted the critical injury. The Eighth Circuit held that the trial court’s refusal to instruct on simple assault along with assault resulting in serious bodily injury was not plain error. 875 F.2d at 1359-60. The court stated:
We acknowledge that the record is not completely devoid of evidence which might support a finding that Young struck [the victim] but did not deliver the blow that caused the brain injury____ [Hjowever, the inference that Brave Hawk — not Young — inflicted the injury is speculative at best. Under these facts, the trial court’s failure to give the lesser included offense instructions simply was not error.
Id. at 1360.
The trial judge’s decision in this case was firmly supported by the holdings in Keeble, Sinclair, and Young. Here, the defendants did not present any evidence that they merely possessed (but did not intend to distribute) the cocaine present in the automobile. Nor is the possibility of mere possession “fairly inferable” from the testimony. The majority offers three reasons for concluding that a jury could fairly infer that the defendants merely intended to possess (and not distribute) the crack found in their car. None of these reasons, however, finds any basis in the record.
First, the majority states that the quantity of drugs present in the car was “small” and hence consistent with personal use. Maj. Op. at 239. This characterization merely reflects the majority’s own opinion about what is a small quantity of crack cocaine; it has no foundation in the record. The majority notes that since other circuits have found 135.71 grams of cocaine not inconsistent with personal use, “we cannot say that a mere 15.5 grams of cocaine was inconsistent with personal use.” Maj. Op. at 238. But the majority appears to group crack together indiscriminately with untreated cocaine. Drugs are not fungible: a few grams of pure heroin may be consistent with distribution while half a pound of marijuana is not. Likewise, crack and cocaine have different dosages, different effects, and different patterns of use. In this case, the car contained 37 rocks of crack cocaine — enough to provide more than seven doses for each individual in the car. Absent some reason to dispute the jury’s conclusion that this amount exceeded what is appropriate for personal use, I cannot understand the majority’s decision to substitute its own speculation.
Second, the majority attempts to draw some inference from the absence of certain drug-dealing paraphernalia in the car. Maj. Op. at 239. The majority observes that the “car contained no drug paraphernalia nor trafficking tools beyond the loaded weapons.” Id. If anything, that evidence has a reverse cut. The crack cocaine here could not have been consumed without a pipe with which to smoke it, but no pipes or other tools suggesting personal use were found with the appellants in their car. The majority ignores that there was other evidence probative of drug-dealing and that none of the parties carried crack directly on their person as one would expect private consumers to do.
All of the “paraphernalia” and other evidence in the car was consistent with distribution, and distribution alone. We have consistently recognized that the guns the appellants possessed — a loaded machine *243gun, a loaded .357 magnum, and a loaded rifle with 30 shots in its clip — are consistent with, and probative of, drug distribution. In another case involving similar, high-powered, offensive weapons, we noted that “substantial dealers in narcotics possess firearms ... such weapons are as much tools of the trade as more commonly recognized paraphernalia.” United States v. Payne, 805 F.2d 1062, 1065 (D.C.Cir.1986).
In addition to the guns, several other pieces of evidence support the finding that Johnson, Whitehead, and Gibbs were engaged in drug distribution. Johnson was carrying over $500 in small bills. Whitehead was linked by police testimony to a prior drug sale. And Gibbs drove the car containing the drugs, Johnson, and Whitehead, and took evasive action to avoid their detection. Considering these factors together — high-powered, offensive weapons, cash, criminal history, and strategic efforts to evade police investigatory efforts — all of the evidence and all of the testimony supported the conclusion that these three defendants were engaged in distribution and not simple possession. This was not a Sunday afternoon ride in the park.
Finally, the majority attempts to draw an inference from the fact that the “trial judge himself realized that he may have made a mistake.” Maj. Op. at 239. In essence, the majority’s position is that because the judge was troubled by his decision not to give a particular instruction, he committed reversible error. The majority’s view would require reversal whenever a judge discussed his or her concerns openly. This cannot be the law. Appellate courts must examine what the judge decided, not expressions of doubt that may find their way into the record. The majority would read the word “not” out of the trial judge’s statement, “I am not sure it is an error.” In any event, the trial judge ultimately expressed confidence in his decision, stating: “I have [a] ... responsibility to instruct them on the law as I understand it to be____ What the court did will speak for itself.”
The majority’s decision, then, seems to me to be an unwise extension of the “fairly inferable” language of Sinclair. The court maintains that such an extension is compelled by our statements in United States v. Thornton, 746 F.2d 39, 47 (D.C.Cir.1984). There, we opined that a defendant is entitled to an instruction on a lesser-included offense if there is “any evidence fairly tending to bear upon the lesser included offense, ‘however weak’ that evidence may be.” Thornton, however, still requires some evidence. It does not mandate a lesser-included offense instruction anytime a court could hypothesize a set of facts which would make the evidence consistent with personal use. Yet this is precisely what the court has done. The majority speculates that defendants Gibbs, Johnson, and Whitehead may be modern-day crack pirates, stealing drugs at gunpoint for their personal consumption, or alternatively, that the defendants are cautious purchasers concerned about their safety in the hazardous drug market. Maj. Op. at 239. These theories, or any facts to support them, were never presented to the jury. That such facts exist is highly improbable. Instead, all of the evidence, as noted, was consistent with the distribution of crack cocaine.
The imprudence of the majority’s course is demonstrated by the result in this case. The court reverses the conviction of Bruce Johnson — a man found with a machine gun and 37 rocks of crack cocaine, driving in a car in a neighborhood known for public drug sales, with $576 in small bills in his pocket — on the ground that he could reasonably have been found to have simply possessed that cocaine without intending to distribute it. The court further holds that Randy Whitehead — linked to prior drug sales, carrying a .357 magnum, riding in a car containing 37 rocks of crack cocaine, taking action to hide these drugs under the seats, and further trying to discard his gun after concealing it in a shirt — should be retried because he might simply have possessed the crack cocaine for his personal use. Finally, it holds that Ronald Gibbs— the driver in an open-air drug market, possessing a loaded rifle, transporting two other armed men and 37 rocks of crack cocaine through the area, and taking evasive action *244to avoid police detection — should be retried for simple possession. I do not believe that any of these conclusions are compelled by the lesser-ineluded offense doctrine or the prior decisions of this court.
In sum, the majority allows bald speculation to tip the scales of justice against the full weight of the evidence and the jury’s decision. I believe this is an unwarranted invasion of the jury's province and a dangerous extension of our court’s precedent.
I recognize that the incriminating combination of evidentiary facts does not apply to defendant Bennett. Since his presence in the car was the only direct evidence linking him to a distribution plan, the jury could have reasonably found him to be guilty of possession alone. He and he alone was entitled to the benefit of a lesserineluded offense instruction. Whatever can be inferred from his mere presence in this automobile loaded with miscreants and their wares and tools, the absence of the attenuating proof applicable to the others makes mere possession a possibility. The very difference in the fact situation applicable to Bennett as compared to the other three defendants demonstrates that Johnson, Whitehead, and Gibbs were not entitled to the possibility of receiving a lesser verdict than they received. The record, unencumbered by the majority’s speculations, links each of these three defendants to crack cocaine distribution and not simple possession. I dissent.