Appellants, Harold Bennett, Ronald Gibbs, Bruce Johnson, and Randy Whitehead, were each found guilty of possession with intent to distribute five grams or more of crack cocaine, following their arrest during which officers seized 15.5 grams of crack cocaine, firearms, and ammunition. Appellants raise several issues on appeal, most notably that the evidence was insufficient to convict them and that the trial judge’s refusal to instruct the jury on the lesser-included offense of mere possession was error. Because we find that the trial judge erred in refusing to give the lesser-included offense instruction, we reverse and remand as to all appellants.
I. Background
On the afternoon of February 17, 1988, three plain clothes officers in an unmarked police car began to follow a rental car that was being driven by Gibbs, and in which Bennett, Johnson, Whitehead and another man were riding as passengers. After apparently discovering that they were being followed by the police, Gibbs began driving erratically, as the other appellants looked back at the pursuing ear and then sunk down in their seats. Gibbs first swerved in and out of one parking lot, then pulled into a second parking lot, and finally stopped abruptly beside a trash dumpster. Johnson exited from the front of the car and threw out a loaded automatic pistol. After exiting from the back seat of the car, Whitehead tossed a loaded pistol (wrapped in a shirt) back into the car, then struggled with the police as they arrested him.
At trial, the prosecution introduced evidence that Johnson had previously been arrested for disorderly conduct, while carrying a large sum of cash and driving a vehicle not rented in his own name. The Government also introduced evidence that Whitehead had once sold cocaine to a police officer.
At the conclusion of trial, defense counsel for all four appellants sought to have the jury instructed on the lesser-included offense of simple possession, in addition to the greater offense of possession with intent to distribute. This request was denied by the trial judge. Later, during their deliberations, the jury sent out a written question asking the trial judge whether the defendants could be acquitted on the charge of possession with intent to distribute, but convicted on the weapons charges. Apparently, the jury was concerned about the intent to distribute charge. The trial court instructed the jury, however, that they could not acquit the defendants of possession with intent to distribute, yet convict on carrying or using weapons in connection with an intent to distribute. Thus, there is some indication the jury believed that the defendants had illegal possession of weapons, and wanted to convict on weapons charges, but it appears they were not convinced that the defendants intended to distribute the drugs. But, in order to convict on the weapons charges, they also had to convict on the intent to distribute charge.
The trial judge subsequently expressed some serious misgivings over his failure to give the lesser-included offense instruction:
THE COURT:
... the more I think about it, I don’t understand how it happened, except for one thing. It was not told to me — well, I guess — it was not conveyed to the jury during the trial — or was it — what is the street value of the cocaine found in the car?
GOVERNMENT:
At about $100 a gram, $1500.
THE COURT:
What I didn’t give enough thought to I think is a lesser included charge. I am not sure it is an error.
Each of the four appellants was convicted of possession with intent to distribute five grams or more of cocaine (21 U.S.C. § 841). The driver, the front passenger, and one rear passenger — Gibbs, Johnson, and Whitehead, respectively — were also convicted on the charge of using or carrying a firearm during and in relation to a drug trafficking crime (18 U.S.C. § 924(c)(1)). Additionally, Johnson was convicted for possession of an unregistered machine gun (26 U.S.C. § 5861(d)).
II. Analysis
Appellants, separately and collectively, raise several bases for reversal. We review each of these in turn.
A. Opinion Evidence on Whitehead’s Prior Drug Sale
As a preliminary matter, Whitehead objects that opinion testimony by an officer regarding the nature of the substance previously sold by Whitehead was inadmissible. It would indeed have been desirable for the Government to have introduced more reliable evidence than an officer’s assertion that the substance sold was cocaine. However, the jury’s attention was called to the fact that the officer was not a
B. Bennett’s Motion to Sever
Appellant Bennett, the back seat passenger who was in no way connected to possession of any of the guns, asserts that his trial should have been severed from that of his co-defendants. This court, however, has repeatedly declared that joint trials may be preferred, given the heavy and increasing criminal case load in our trial courts. See United States v. Manner, 887 F.2d 317, 324 (D.C.Cir.1989), cert. denied, — U.S. —, 110 S.Ct. 879, 107 L.Ed.2d 962 (1990). Severance is due only if the evidence against one’s co-defendants is “far more damaging” than the evidence facing the accused, making it unreasonable to expect a jury to compartmentalize the evidence. Id.; see also United States v. Sampol, 636 F.2d 621, 647 (D.C.Cir.1980). Where virtually all the evidence adduced at trial concerns a common course of conduct during one transaction or event, as is the case here, severance need not be granted. That two incidents concerning prior crimes of Bennett’s co-defendants were raised at trial does not require severance where the common chord of evidence bears upon the guilt or innocence of all four defendants.
C. Sufficiency of the Evidence
Each of the four appellants requests reversal on the grounds that the Government introduced insufficient evidence to support a conviction for possession with intent to distribute. Because of the respect owed by appellate courts to jury verdicts, we review the evidence and all legitimate inferences in the light most favorable to the Government. United States v. Hernandez, 780 F.2d 113, 120 (D.C.Cir.1986); United States v. Pardo, 636 F.2d 535, 547 (D.C.Cir.1980).1
We have regularly and definitely stated that, while proximity to drugs is not enough to prove possession, evidence of some other factor—including connection with a gun, proof of motive, a gesture implying control, evasive conduct, or a statement indicating involvement in an enterprise—coupled with proximity may surpass the minimum threshold of evidence needed to put the question of guilt to a jury. See, e.g., United States v. Dunn, 846 F.2d 761, 763-64 (D.C.Cir.1988) (“ ‘[Pjresence, proximity or association may establish a prima facie case of drug possession when colored by evidence linking the accused to an ongoing criminal operation of which that possession is a part’____ [The defendant’s] connection to the gun [on a nearby couch] suggests he exercised control over the drugs in the house.” (citation omitted)); Hernandez, 780 F.2d at 117 (proximity with a gesture, motive or purpose in using the item, or proof that the “defendant took evasive action in response to the presence of police” is sufficient to put possession to the jury); Pardo, 636 F.2d at 548. Since circumstantial evidence is sufficient to establish guilt, even though one clue alone, such as presence, may be insufficient to put the case to the jury, a combination of such clues may narrow the possibilities enough to prove guilt to a reasonable person.
In the case at hand, case law makes it clear that each appellant could be found to have had joint possession of all 15.5 grams of crack found in the car. In United States v. Richardson, 504 F.2d 357,
Intent to distribute may be inferred from a combination of suspicious factors, such as possession of a relatively large amount of cash, weapons, more than a minimal amount of narcotics, and activity in an area of “high narcotic trafficking.” See United States v. Payne, 805 F.2d 1062, 1066 (D.C.Cir.1986); United States v. Raper, 676 F.2d 841, 845 (D.C.Cir.1982); United States v. Brett, 872 F.2d 1365, 1370 (8th Cir.), cert. denied, — U.S.—, 110 S.Ct. 322, 107 L.Ed.2d 312 (1989). Such factors were present in this case; and, while this evidence need not necessarily have convinced a jury that the appellants were guilty, it was sufficient to prove possession with intent to distribute.
Johnson possessed a loaded machine gun (which he tried to abandon), carried $576 in small bills, was near 37 rocks of crack cocaine, including some separately wrapped rocks, all while traveling in a moving vehicle in an area known for high drug traffic. The evidence was sufficient to support a conviction.
Likewise, the evidence was sufficient to convict Whitehead, who wielded a loaded pistol—which he attempted to throw away—and sat next to two containers of drugs in a car driving through a heavy narcotics trafficking area. He reportedly turned, bent down, and took some action below the line of vision of the officers while the car was being followed. Evidence was also introduced to prove that he had previously sold cocaine.
Also, on this record, Gibbs, the driver, could have been found to have had constructive possession of the loaded rifle and ammunition found in the trunk. His possession of the trunk key is a sufficient basis for such constructive possession. United States v. Martinez, 588 F.2d 495, 498-99 (5th Cir.1979). Furthermore, as the driver and only passenger found to have keys to the car, Gibbs is held to a higher level of accountability for its contents. United States v. Zabalaga, 834 F.2d 1062, 1065 (D.C.Cir.1987) (“[I]t appeared that the appellant had actual control over the car and the drugs therein, for only he had keys to the car.”). He took evasive action, driving into one parking lot and then another, then suddenly stopping by a trash dumpster. As the driver of a group in possession of drugs and guns, in a car travelling through a narcotics trafficking area, Gibbs could be found by reasonable jurors to be guilty of possession with intent to distribute.
Finally, we hold that the Government introduced enough evidence against Bennett to sustain his conviction. Bennett entered the car with armed men. Bennett, moreover, obviously was very near to the drugs in the car. The evidence at trial indicated that the passengers of the car made an effort to hide the drugs under the seats; this testimony would be especially probative against Bennett, as the middle passenger in the back seat, thus in the clearest view of the officers following behind. While a jury might have doubted this testimony regarding the defendant’s alleged attempt to bend down and hide the drugs, and while merely turning to look at a trailing police car is not by itself probative of any guilt, the assertions and credibility of the witness describing an attempt to “bend down as if doing something with their hands” were for the jury to consider.
Drawing all inferences in favor of the Government, we simply cannot conclude that a man who voluntarily entered a car with other individuals who possessed sever
D. Instructing the Jury on Lesser Included Offenses
All four appellants challenge the District Court’s denial of their request for a lesser-included offense instruction. At trial, appellants asked the court to instruct the jury on the lesser-included offense of simple possession, in addition to the greater offense of possession with intent to distribute. On the facts of this case, we find that the lesser-included offense instruction should have been given as to all appellants, and we therefore reverse and remand.
“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.” United States v. Thornton, 746 F.2d 39, 47 (D.C.Cir.1984) (quoting Belton v. United States, 382 F.2d 150, 155 (D.C.Cir.1967)); see also Payne, 805 F.2d at 1067 (same); United States v. Tarantino, 846 F.2d 1384, 1400 (D.C.Cir.) (“The trial court is required to give a proper instruction, and to instruct on the defendant’s theory of the case if supported by the evidence”), cert. denied, 488 U.S. 867, 109 S.Ct. 174, 102 L.Ed.2d 143 (1988). The “test” for determining when the lesser instruction is required is:
whether there was a reasonable basis on which the jury could find the defendant guilty of [the lesser offense] beyond a reasonable doubt yet entertain a reasonable doubt [as to the greater offense].
United States v. Sinclair, 444 F.2d 888, 890 (D.C.Cir.1971); see also Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 890, 99 L.Ed.2d 54 (1988) (“[A] defendant is entitled to an instruction as to any recognized defense for which there exists evidence for a reasonable jury to find in his favor.”) In the present case, a reasonable jury could have found the appellants guilty of simple possession of cocaine, yet not guilty of possession with intent to distribute.
The four appellants plus a fifth person were in possession of 15.5 grams of cocaine and various weapons and ammunition. However, this is not a case in which the defendants were in possession of a quantity of drugs so large as to defy a suggestion of personal use. See Payne, 805 F.2d at 1067 (lesser-included offense instruction unnecessary when defendants possessed forty pounds of marijuana); Thornton, 746 F.2d at 48 (instruction unnecessary where “no one could claim, and appellant did not argue, that [$44,000 worth] of heroin, at such a degree of purity, was consistent with merely personal use”); see also United States v. Espinosa, 827 F.2d 604, 615 (9th Cir.1987) (sixty-nine pounds of cocaine), cert. denied, 485 U.S. 968, 108 S.Ct. 1243, 99 L.Ed.2d 441 (1988); United States v. Rogers, 504 F.2d 1079, 1084 (5th Cir.1974) (427 pounds of marijuana worth between $30,000 and $60,000), cert. denied, 422 U.S. 1042, 95 S.Ct. 2655, 45 L.Ed.2d 693 (1975). In the present case, the Government presented no evidence, nor any expert testimony, that five adult men could not possibly consume 15.5 grams [.54 ounces] of cocaine. Indeed, in United States v. Levy, 703 F.2d 791, 793 and n. 7 (4th Cir.1983), the court refused to consider 4.75 ounces [135.71 grams] of cocaine, worth more than $14,000, to be per se inconsistent with personal use. Absent any evidence to the contrary, we cannot say that a mere 15.5 grams of cocaine was inconsistent with personal use.
We have no doubt that the evidence was sufficient to convict the appellants of possession with intent to distribute; but, when the issue is the propriety of a lesser-included offense instruction, the test is whether a reasonable jury could nonetheless find the appellants guilty only of simple possession. See United States v. Burns, 624 F.2d 95, 104 (10th Cir.) (“the evidence was sufficient to support the jury’s inference that these appellants possessed cocaine with an intent to distribute, but the jury was free also not to draw such an inference. [The appellants] were entitled to a jury consideration of the offense of simple possession”), cert. denied, 449 U.S. 954, 101 S.Ct. 361, 66 L.Ed.2d 219 (1980).
The rationale for giving the lesser-included offense instruction is both logical and appealing:
[w]here one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.
Keeble v. United States, 412 U.S. 205, 212-13, 93 S.Ct. 1993, 1998, 36 L.Ed.2d 844 (1973) (emphasis in original). In the present case, the jury was put in exactly this quandary. In fact, during deliberations the jury sent a written message to the trial judge asking whether they could convict the appellants on the weapons charges (using and carrying a firearm in relation to a drug trafficking offense) but acquit on the intent to distribute charges. This suggests that the jury may have thought that the evidence was sufficient to find the possession of weapons, but insufficient to find an intent to distribute. Nonetheless, once the trial judge instructed the jury that they could not convict on the weapons charges without finding an intent to distribute, the jury resolved its doubts in favor of conviction on all charges. The trial judge recognized his possible error when he said, after reading the jury’s note and discovering that the street value of the cocaine was only about $1500, “What I didn’t give enough thought to I think is a lesser included charge. I am not sure it is an error.”
Viewing the evidence as a whole, we cannot say that a reasonable jury could not have found the appellants guilty only of simple possession. Where the quantity of drugs was small, the car contained no drug paraphernalia nor trafficking tools beyond the loaded weapons, the Government proffered no expert testimony that the quantity and packaging of drugs were inconsistent with personal use, and the trial judge himself realized that he may have made a mistake in failing to provide the lesser-included offense instruction, it was reversible error for the trial judge not to give the lesser-included offense instruction.
E. Additional Errors Assigned
Appellants raise several miscellaneous claims. First, Whitehead maintains that the jury should have been instructed as to two lesser D.C.Code offenses purportedly within 18 U.S.C. § 924(c)(1). Under
The next alleged error is raised by all appellants, who assert that the trial judge’s initial failure to specify that in order to convict on the charge presented, the jury had to find that the defendants possessed five grams of cocaine. The judge stated instead that the jury had to find that the defendants possessed “some measurable amount of the substance.” Considering the failure of counsel for any of the appellants to object to this instruction below, and the fact that the prosecutor brought this error to the attention of the trial judge, who then corrected the error (repeating his correction twice), we find no reversible error.
Appellants also maintain that the prosecutor included prejudicial statements in his closing statement. We find no merit to this objection. Appellant Johnson’s own attorney introduced evidence of Johnson’s prior arrest for disorderly conduct, to establish prior police contact with him and his girlfriend in order to lay a foundation for his theory of a conspiracy by the testifying officers to frame Johnson. When the prosecutor referred to this arrest in his closing statement, saying, “Last summer he was involved in an incident involving Mr. Johnson. You know that Mr. Johnson was up around J Street, the open air drug market,” Gibbs’ attorney objected (without articulating a specific basis for the objection). Certainly the prosecutor was free to refer to that testimony.
Finally, Bennett and Whitehead challenge the sentences they received. As we have reversed all four convictions with instructions to retry the appellants, we need not review their sentences.
III. Conclusion
Because we find that the District Court should have instructed the jury on the lesser-included offense of simple possession, we reverse and remand as to all appellants.
It is so ordered.
1.
Although we normally permit readjudication to remedy an error in the conduct of trial, "[t]he same cannot be said when a defendant’s conviction has been overturned due to a failure of proof at trial, in which case the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble.” Burks v. United States, 437 U.S. 1, 16, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978). The Double Jeopardy clause of the fifth amendment to the Constitution would therefore preclude a second trial here in the case of any appellant whose guilt was not adequately proven at trial.
2.
It is true, as Bennett points out in his brief, that two decades ago this court stated that the presence of three guns plus a quantity of heroin in a car with three men might indicate a common "purpose to commit a crime involving guns, [but] does not indicate a joint venture to commit a wrong" involving "the possession, sale, or concealment of narcotics." United States v. Bethea, 442 F.2d 790, 793 (D.C.Cir.1971) (emphasis added). But Bethea did not develop a black letter rule depriving district courts of discretion to put appropriate cases to the jury. In this case, we find that there was enough evidence to go to the jury on the question of intent to distribute.