UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 94-41269
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
JOHN DERRICK SKIPPER,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
January 26, 1996
Before JOLLY, DUHÉ, and WIENER, Circuit Judges.
DUHÉ, Circuit Judge:
John Derrick Skipper appeals his conviction for possession of
crack cocaine with intent to distribute, in violation of 21 U.S.C.
§ 841(a)(1). Finding insufficient evidence to support the jury’s
verdict, we reverse, vacate the sentence and remand for sentencing
on the lesser included offense of simple possession.
BACKGROUND
While patrolling Interstate Highway 10, Deputy Sheriff Todd
Richards and criminal justice student Benny Soileau observed a
Nissan automobile changing lanes erratically. Officer Richards
closed on the Nissan and activated the lights of his patrol car.
As the Nissan moved to the right lane, Richards and Soileau
observed a small plastic bag fly from the driver’s side of the car.
After pulling over to the shoulder, John Derrick Skipper, the
driver and owner of the Nissan, exited his car and approached the
police car. Officer Richards immediately placed Skipper under
arrest. Richards then went to the Nissan, where he found a
passenger, Jerome Cutright, seated in the car. Officer Richards
next placed Skipper in the patrol car and drove to retrieve the bag
from the side of the road. The bag contained 2.89 grams of crack
cocaine. Richards also searched the Nissan and found one straight-
edge razor between the front two seats.
At trial, pursuant to Federal Rule of Evidence 404(b), the
district court admitted into evidence two state-court convictions
for crimes allegedly committed by Skipper. Government Exhibit #3
was a certified copy of a judgment against “John Derrick Skipper”
indicating that Appellant pled guilty to possession of a controlled
substance. An expert testified that the fingerprints on this
conviction matched Appellant’s fingerprints. Government Exhibit #2
was a certified copy of a deferred adjudication order indicating
that “John D. Skipper” was placed on ten years probation for
possession of a controlled substance. However, this order did not
bear any fingerprints, and the government did not otherwise
identify Appellant as the person named in the order.
The jury convicted Skipper of possession of crack cocaine with
intent to distribute, in violation of 21 U.S.C. § 841(a)(1). On
appeal, Skipper challenges the sufficiency of the evidence and also
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argues that the district court erred by admitting the deferred
adjudication order.
DISCUSSION
I. Sufficiency of the Evidence
“In reviewing an appeal based on insufficient evidence, the
standard is whether any reasonable trier of fact could have found
that the evidence established the appellant’s guilt beyond a
reasonable doubt.” United States v. Jaramillo, 42 F.3d 920, 922-23
(5th Cir.), cert. denied, 115 S. Ct. 2014 (1995). We review the
evidence in the light most favorable to the verdict. Id. at 923.
To establish a violation of 21 U.S.C. § 841(a)(1), “the
government must prove knowing possession of the contraband with
intent to distribute.” United States v. Cardenas, 9 F.3d 1139,
1158 (5th Cir. 1993), cert. denied, 114 S. Ct. 2150 (1994). The
elements of the offense may be proven either by direct or
circumstantial evidence. Id.
A. Knowing Possession
Possession may be either actual or constructive and may be
joint among several people. Id. “Constructive possession has been
defined as ownership, dominion, or control over the contraband, or
over the vehicle in which the contraband was concealed.” United
States v. Gonzalez-Lira, 936 F.2d 184, 192 (5th Cir. 1991).
There was sufficient evidence for the jury to conclude that
Skipper knowingly possessed the crack cocaine. Skipper was the
owner and driver of the Nissan. Richards and Soileau saw the
package come from the driver’s side of the car, and the driver’s
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side window and sunroof were open. In addition, Cutright testified
that he did not throw the bag from the car, that the passenger side
window was closed, and that he was asleep until the police pulled
the car over. Based on this evidence, the jury could reasonably
infer that Skipper possessed the bag of crack cocaine and threw it
from the car.
B. Intent to Distribute
A quantity of drugs consistent with personal use does not
raise an inference of intent to distribute in the absence of
additional evidence. See Turner v. United States, 396 U.S. 398, 90
S. Ct. 642, 656 (1970) (14.68 grams of cocaine insufficient to
sustain a conviction for distribution); United States v. Olvera,
523 F.2d 1252, 1253 (5th Cir. 1975) (1.84 grams of cocaine-sugar
mixture insufficient to infer intent to distribute); United States
v. Onick, 889 F.2d 1425 (5th Cir. 1989) (7.7 grams of heroin and
cocaine alone not sufficient to infer intent). Such a quantity of
a controlled substance, however, is sufficient when augmented by
“the presence of distribution paraphernalia, large quantities of
cash, or the value and quality of the substance.” United States v.
Munoz, 957 F.2d 171, 174 (5th Cir.), cert. denied, 113 S. Ct. 332
(1992).
Skipper possessed 2.89 grams of crack cocaine. The government
introduced some testimony indicating that this amount of drugs
could suggest drug dealing. Because this quantity is not clearly
inconsistent with personal use, however, we hold as a matter of law
that this quantity alone is insufficient to prove intent.
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Additional evidence is necessary. See Onick, 889 F.2d at 1431
(“While the jury could not infer intent from the small amount of
heroin and cocaine (7.7 grams) alone, it could infer intent from
the combination of the drugs with the drug paraphernalia,
particularly the 4,063 empty gelcaps.”).
The prosecution failed to provide this additional evidence.
According to the government, the straight-edge razor found in the
Nissan and the absence of smoking paraphernalia suggest that
Skipper intended to distribute the crack cocaine in his possession.
We disagree. Even viewed in the light most favorable to the
government, the evidence is insufficient to prove Skipper’s intent
beyond a reasonable doubt. At trial Officer Richards acknowledged
that a razor may be used to cut crack cocaine into smaller pieces
for personal consumption. Paraphernalia that could be consistent
with personal use does not provide a sound basis for inferring
intent to distribute. Thus, we do not believe that a reasonable
jury could conclude beyond a reasonable doubt that Skipper intended
to distribute the 2.89 grams of crack cocaine. Accordingly, we
reverse Appellant’s conviction under 21 U.S.C. § 841(a)(1).
C. Lesser Included Offense
We next consider how best to dispose of this case on appeal,
given that there was sufficient evidence to find Skipper guilty of
simple possession, but not possession with intent to distribute.
Simple possession in violation of 21 U.S.C. § 844(a) is a lesser
included offense of 21 U.S.C. § 841(a)(1), possession with the
intent to distribute. See United States v. Steen, 55 F.3d 1022,
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1031 (5th Cir.), cert. denied, 116 S. Ct. 577 (1995). Because the
jury necessarily found all of the elements of simple possession in
rendering its verdict, we are empowered under 28 U.S.C. § 2106 to
reduce Skipper’s Section 841 conviction to a Section 844
conviction.1 See, e.g., United States v. Swiderski, 548 F.2d 445
(2d Cir. 1977). Therefore, we remand for the entry of judgment
accordingly and for sentencing on the lesser included offense.
II. Admissibility of Deferred Adjudication Order
We review the admission of evidence only for an abuse of
discretion. United States v. Eakes, 783 F.2d 499, 506-07 (5th
Cir.), cert. denied, 477 U.S. 906 (1986). Furthermore, even if we
find an abuse of discretion in the admission or exclusion of
evidence, we review the error under the harmless error doctrine.
United States v. Scott, 678 F.2d 606, 612 (5th Cir.), cert. denied,
459 U.S. 972 (1982). Finally, we must affirm evidentiary rulings
unless they affect a substantial right of the complaining party.
Fed. R. Evid. 103(a); Foster v. Ford Motor Co., 621 F.2d 715, 721
(5th Cir. 1980).
The district court admitted into evidence a deferred
adjudication order indicating that a “John D. Skipper” was placed
on ten years probation for possession of a controlled substance.
However, the court erred in admitting this evidence because the
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Section 2106 provides that a Court of Appeals may “affirm,
modify, vacate, set aside or reverse any judgment, decree, or order
of a court lawfully brought before it for review, and may remand
the cause and direct the entry of such appropriate judgment,
decree, or order, or require such further proceedings to be had as
may be just under the circumstances.” 28 U.S.C. § 2106.
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government should have been required to produce evidence proving
that Appellant was the actual “John D. Skipper” named in the
deferred adjudication order. Rule 901(a) of the Federal Rules of
Evidence provides: “The requirement of authentication or
identification as a condition precedent to admissibility is
satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims.” We hold that the
mere similarity in name between a criminal defendant and a person
named in a prior conviction alone does not satisfy Rule 901's
identification requirement.
Nevertheless, we find the court’s error harmless. “In a
harmless error examination, ‘[w]e must view the error, not in
isolation, but in relation to the entire proceedings.’” United
States v. Williams, 957 F.2d 1238, 1244 (5th Cir. 1992) (quoting
United States v. Brown, 692 F.2d 345, 350 (5th Cir. 1982)). “We
must decide whether the inadmissible evidence actually contributed
to the jury’s verdict.” United States v. Gadison, 8 F.3d 186, 192
(5th Cir. 1993). Because the court properly admitted a similar
possession conviction and instructed the jury on its limited
purpose, the improperly admitted order did not actually contribute
to the jury’s verdict.
CONCLUSION
Accordingly, we reverse the district court’s judgment of
conviction of possession with intent to distribute under 21 U.S.C.
§ 841(a)(1) and vacate the sentence. We remand the case to the
district court with instructions to enter a judgment of guilt of
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simple possession under 21 U.S.C. § 844(a) and to sentence Skipper
for that offense.
Conviction REVERSED, sentence VACATED and cause REMANDED WITH
INSTRUCTIONS.
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