dissenting:
In my view, the evidence was more than sufficient to establish Martinez’s guilt on Count One of possession with intent to distribute cocaine.
It is well settled that a defendant seeking to overturn a conviction based upon insufficiency of the evidence bears a “heavy burden.” United States v. Sureff, 15 F.3d 225, 228 (2d Cir.1994); United States v. Casamento, 887 F.2d 1141, 1156 (2d Cir.1989), cert. denied, 493 U.S. 1081, 110 S.Ct. 1138, 107 L.Ed.2d 1043 (1990). Not only must the evidence be viewed in the light most favorable to the government and all permissible inferences drawn in its favor, United States v. Nersesian, 824 F.2d 1294, 1302 (2d Cir.), cert. denied, 484 U.S. 957, 108 S.Ct. 355, 98 L.Ed.2d 380 (1987), but if the evidence, thus construed, suffices to convince any rational trier of fact beyond a reasonable doubt, then Martinez’s conviction must stand. United States v. Resto, 824 F.2d 210, 212 (2d Cir.1987) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). The government’s ease need not exclude “every possible hypothesis-of innocence,” United States v. Friedman, 998 F.2d 53, 59 (2d Cir.1993) (quoting United States v. Soto, 716 F.2d 989, 993 (2d Cir.1983)), and it is the task of the jury, not the court, to choose among competing inferences. United States v. Stanley, 928 F.2d 575, 577 (2d Cir.), cert. denied, 502 U.S. 845, 112 S.Ct. 141, 116 L.Ed.2d 108 (1991). The jury’s verdict may be based entirely on circumstantial evidence. United States v. Libera, 989 F.2d 596, 601 (2d Cir.), cert. denied, — U.S. -, 114 S.Ct. 467, 126 L.Ed.2d 419 (1993).
I fully agree that the possession of a small quantity of drugs standing alone is insufficient to prove an intent to distribute. Turner v. United States, 396 U.S. 398, 422-23, 90 S.Ct. 642, 655-56, 24 L.Ed.2d 610 (1970) (14.68 grams insufficient); United States v. Boissoneault, 926 F.2d 230, 234 (2d Cir.1991) (5.31 grams); United States v. Gaviria, 740 F.2d 174, 184 (2d Cir.1984). But, since the statute specifies no minimum amount, any amount of drugs, however small, will support a conviction where there is additional evidence of intent to distribute. See United States v. Ramirez, 608 F.2d 1261, 1264 (9th Cir.1979) (“[W]here there is other evidence of '... intent to distribute, possession of as small a quantity as 4 or 5 grams is sufficient to establish an intent to distribute....”); United States v. Peterson, 768 F.2d 64, 66 n. 1 (2d Cir.) (3.8 grams of heroin; citing Ramirez with approval), cert. denied, 474 U.S. 923, 106 S.Ct. 257, 88 L.Ed.2d 264 (1985).
In this case, there was ample additional evidence from which intent to distribute may fairly be inferred. It is only by separating out the several items of evidence and imper-missibly drawing inferences from each in fa*157vor of the defendant that the majority is able to argue that the evidence is insufficient. Yet, as the majority concedes, the evidence must be viewed in its totality, United States v. Mariani, 725 F.2d 862, 865, 866 (2d Cir.1984), and, more importantly, on appeal all inferences must be drawn in the government’s favor, not the defendant’s. Sureff, 15 F.3d at 228.
The jury was carefully instructed by an able district judge on both the elements of possession with intent to distribute and the elements of the lesser included offense of simple possession. Indeed, the principal question for the jury to resolve was whether the defendant intended to distribute the cocaine found on his person or in the apartment. From all of the evidence, permissible inferences could be drawn in either direction. The jury considered this evidence and drew inferences in the government’s favor, as it was entitled to do. Now on appeal the majority draws them in the defendant’s favor. I happen to think the inferences in the government’s favor were more appropriate, but even if, like the majority, I thought otherwise, I would affirm. The job of picking among competing inferences is for the jury, not the court. Stanley, 928 F.2d at 577 (“Although appellant suggests competing inferences and explanations, it is the jury’s task, not ours, to choose among them.”).
At the outset, I take sharp issue with the majority’s view that “the government’s theory was that Martinez was a user who, like many users, was also a seller.” Ante at 152. The evidence on whether Martinez was a user was in conflict and the government articulated no such “theory.” The majority rests its conclusion solely upon the government’s rebuttal statement that it did “not dispute [Martinez] may also have been a user of cocaine” as well as a seller (emphasis added). But the government was merely responding to the defense’s candid recognition in its summation that there was conflicting evidence on the point. The government’s theory was simply that Martinez was a seller, whether or not he was also a user. At trial, the defendant, who rested without putting on a case, offered no proof on the issue. His lawyer was only able to point to a judgment of conviction entered in May, 1988, five years before defendant’s arrest here. The judgment had been offered by the government to prove defendant was a felon in possession of a firearm and contained, as part of the sentence, a directive that defendant participate in a program of urinalysis testing, and if necessary, drug treatment. The government, however, brought out that the defendant flatly denied that he was a drug user when he was arrested in March,. 1993. Detective Gardiner, who arrested and processed the defendant, testified at trial as follows:
Q. Detective, I want to clarify a matter that was raised on cross.
I am giving you 3501 M. Review that. Do you recall what response the defendant gave when he was asked whether he used any drugs?
A. -Yes.
Q. What did the defendant say?
A. He indicated to me that he did not. (Tr. 94)
I mention this because the “fact” of Martinez’s drug abuse trumpeted by his counsel at trial and on appeal and treated by the majority’s opinion as a given was an open question that the jury was entitled to determine in the government’s favor.
The evidence at the time Martinez was arrested was straightforward and can be briefly stated. When the officers forcibly entered the apartment through the door to the living room, Martinez was standing in the room holding a loaded gun. A co-defendant, Garcia, was standing unarmed in the kitchen. Martinez immediately ran to the back of the apartment to a rear bedroom, where he threw his gun out of the window. The police apprehended and searched Martinez. They seized from Martinez’s person a black leather pouch containing five bags of white powder, one of which contained an eighth of an ounce (or three and one-half grams) of cocaine. The other four contained a total of one-half ounce of “cut” used to dilute cocaine. He also possessed on his person a small hand-held scale capable of weighing amounts up to one gram. In the living room where Martinez was standing holding a gun when the officers entered, there was in plain view on a table another eighth of an ounce of cocaine, a *158grinder, an electronic 100-gram scale, tin foil, and a sifter used to mix cocaine with cut. Officers also seized $1,078 in cash from a closet near the rear bedroom. An informant had identified the apartment searched— Apartment 4E at 134 Elliott Place — as belonging to a man named “Juan.” At trial, an officer testified that Garcia fit the description of “Juan” to a “very specific degree.” After his arrest, Garcia gave his address as 130 Elliott Place, not 134 Elliott Place, where the arrests took place.
Even if Martinez were a drug user at the time of his 1993 arrest, his physical possession of scales, cut, and a loaded firearm easily supported the jury’s rejection of his personal-use defense. “Possession of equipment to weigh', cut and package drugs is highly probative of a purpose to distribute.” United States v. Pugh, 566 F.2d 626, 628 (8th Cir.1977), cert. denied, 435 U.S. 1010, 98 S.Ct. 1885, 56 L.Ed.2d 393 (1978). The majority chooses to infer that the one-gram scale “[points] towards his being a user,” ante at 152, notwithstanding that the three and one-half grams in his possession was an amount too great for his one-gram scale- and could easily have been verified on the 100-gram scale, and notwithstanding credible testimony that street sales of one-half and one gram were common. The record thus belies the majority’s claim that “the jury had no evidence that showed that the one-gram scale was more likely used by Martinez to measure quantities for distribution than to measure quantities for personal use,” ante at 152. The majority also infers improbably that Martinez’s possession of cut was consistent with drug purchasing despite credible testimony at trial that cut was used to increase seller’s profits and reduce toxicity. Moreover, while tin foil, used to package cocaine for sales to user customers, was found on the living room table, none of the drugs found on Martinez was so wrapped.
Finally, Martinez’s possession of the loaded firearm by itself provided credible evidence of Martinez’s intent to distribute. See, e.g., United States v. White, 969 F.2d 681, 684 (8th Cir.1992) (“Because a gun is generally considered a tool of the trade for drug dealers, [it] is also evidence of intent to distribute’ ” (quoting United States v. Schubel, 912 F.2d 952, 956 (8th Cir.1990))); United States v. Garrett, 903 F.2d 1105, 1113 (7th Cir.) (loaded pistol found directly underneath bag containing a small amount of cocaine was, together with other factors, sufficient to infer intent to distribute, and supported conviction for possession with intent to distribute), cert. denied, 498 U.S. 905, 111 S.Ct. 272, 112 L.Ed.2d 227 (1990); United States v. Rush, 890 F.2d 45, 49, 52 (7th Cir.1989) (loaded weapon found in car defendant was walking toward when arrested was relevant evidence in prosecution for possession of heroin with intent to distribute; weapon was a “ ‘tool’ of the trade,” and was an “essential part of the crime of possession with intent to distribute”); United States v. Dunn, 846 F.2d 761, 764 (D.C.Cir.1988) (as a “tool[ ] of the narcotic trade,” loadéd gun found on couch near defendant supported inference of intent to distribute where defendant constructively possessed drugs in housé); United States v. Matra, 841 F.2d 837, 841 (8th Cir.1988) (intent to distribute may be inferred from, among other things, the presence of'firearms).
The majority concedes that Martinez’s possession of a gun was “somewhat probative” of intent to distribute, ante at 152, and candidly acknowledges, ante at 153, that in Boissoneault we said that the presence of a weapon would “help[ ] sustain an inference that [defendant] was engaged in the dangerous business of drug trafficking,” 926 F.2d at 234. But it argues, that the government “fail[ed] to establish any nexus between the gun and the drug trafficking activity.” Ante at 153. However, this is not a case like United States v. Lasanta, 978 F.2d 1300 (2d Cir.1992), or United States v. Feliz-Cordero, 859 F.2d 250 (2d Cir.1988), cited by the majority, where the gun was physically removed in time or place from the activity in question or was otherwise not quickly accessible. Here the defendant whose drugs were concealed on his person was holding a loaded firearm when the officers entered the apartment. The majority’s conclusion that the gun was to protect his purchase or “some other criminal activity,” ante at 153, is no more warranted than the inference that the jury was entitled to draw, and the caselaw supports, that the *159gun was to protect his activity as a trafficker of drugs.
In short, this is not a case like Boisso-neault where there was no additional evidence beyond the possession of the amount of drugs in question from which intent could be inferred. We stated in Boissoneault:
At the time of his arrest, Boissoneault possessed none of the paraphernalia usually possessed by drug dealers, such as scales, beepers, and other devices, nor did he possess any of the materials needed to process cocaine or to package it in druggist folds. Nor was there any evidence that Boissoneault owned a gun or other weapon, which would have helped sustain an inference that he was engaged in the dangerous business of drug trafficking.
926 F.2d at 234.
In this case the opposite is true. The defendant possessed drug paraphernalia, namely, scales and cut, as well as a gun from which “an inference that he was engaged in the dangerous business of drug trafficking,” •id., could properly be drawn.
The majority’s contention that the only reasonable inference is that Martinez was purchasing for his own use from Garcia is untenable. The jury could easily have concluded beyond a reasonable doubt that both men were dealers: that Martinez had just bought his cocaine from Garcia to deal on the street, or that Garcia was the front man who rented the apartment as part of a joint distribution enterprise that Martinez was protecting with his gun against intruders (until he saw the police). Since there is no burden on the government to exclude “every possible hypothesis of innocence,” Friedman, 998 F.2d at 59, and the choice among competing inferences is for the jury and not the court, Stanley, 928 F.2d at 577, the resolution of which scenario to credit should properly be left to the jury.
Because the defendant has not overcome the “heavy burden” of showing that the evidence was insufficient for the jury to reject his personal-use defense and to find that he possessed cocaine with intent to distribute, and because on appeal the government is entitled to the benefit of inferences in its favor, I would affirm the conviction of Martinez on all counts.
I respectfully dissent.