UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 94-40695
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WENDELL WAYNE HARRISON,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________________________________________________
(May 31, 1995)
Before GARWOOD, JOLLY, and BARKSDALE, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
Wendell Wayne Harrison challenges his convictions for
possession with intent to distribute cocaine base and using or
carrying a firearm during the commission of a drug-trafficking
offense, contending that the evidence is insufficient and that a
lesser-included offense instruction should have been given on the
drug charge. We AFFIRM.
I.
Harrison was indicted in January 1994 for possession with the
intent to distribute five grams or more of cocaine base, in
violation of 21 U.S.C. § 841(a)(1), and for using or carrying a
firearm during and in relation to a drug-trafficking offense, in
violation of 18 U.S.C. § 924(c)(1). A jury found him guilty on
both counts; and he was sentenced, inter alia, to 135 months
imprisonment on the drug offense, with a 60-month consecutive term
on the firearm count.
II.
As noted, two issues are before us: whether the evidence is
insufficient; and whether an instruction on the lesser-included
offense of simple possession of a controlled substance should have
been given. Harrison did not present evidence at trial.
A.
To establish a violation of 21 U.S.C. § 841(a)(1), the
Government must prove, beyond a reasonable doubt, that the
defendant "knowingly possessed contraband with the intent to
distribute it". E.g., United States v. Inocencio, 40 F.3d 716, 724
(5th Cir. 1994). Harrison does not contest the knowing possession
element; he asserts only that the evidence is insufficient to prove
that he intended to distribute the cocaine seized at his
residence.1 Our standard for reviewing challenges to the
sufficiency of the evidence is well-established:
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. The jury retains sole
responsibility for determining the weight and
credibility of the evidence. As such, we must
construe all reasonable inferences from the
evidence in favor of the verdict. A review
concentrates on whether the trier of fact made a
rational decision to convict or acquit, not whether
the fact finder correctly determined the
defendant's guilt or innocence. Further, the
1
As noted, Harrison did not present any evidence. When the
Government rested, he moved for judgment of acquittal, Fed. R.
Crim. P. 29(a), thereby preserving this issue.
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evidence need not exclude every reasonable
hypothesis of innocence.
United States v. Jaramillo, 42 F.3d 920, 922-23 (5th Cir. 1995)
(emphasis added). For example, "[i]ntent to distribute may be
inferred from the value and quantity of the substance possessed."
United States v. Casilla, 20 F.3d 600, 603 (5th Cir.), cert.
denied, ___ U.S. ___, 115 S. Ct. 240, 255, 361 (1994). However,
"proof of intent to distribute does not require the presence of a
certain minimum quantity of controlled substance". United States
v. Munoz, 957 F.2d 171, 174 (5th Cir.), cert. denied, ___ U.S. ___,
113 S. Ct. 332 (1992). Such intent "may be inferred from the
presence of distribution paraphernalia, large quantities of cash,
or the value and quality of the substance". Id.
The Government introduced evidence that, in July 1993, during
the execution of a search warrant (obtained with the assistance of
a confidential informant) at Harrison's residence, officers found
cocaine and marijuana residue, a canister containing marijuana
residue, and "dime" bags of marijuana, on the top of the dresser in
Harrison's bedroom.2 In the top drawer of the dresser, officers
found crack cocaine "cookies", one of which had been cut into $50
"slabs" and $20 "rocks", and $170 in currency.3 A forensic analyst
testified that the cocaine base seized from Harrison's residence
was 81% pure and weighed 49.32 grams. A loaded .22 caliber pistol
2
A narcotics officer testified that the "dime" bags were small
bags, containing five grams or less of marijuana.
3
There was testimony that a one-ounce crack cocaine cookie
sells for about $750.
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and ammunition were found in the same drawer, next to the cocaine.
Harrison's driver's license was found on the nightstand in the same
room. Arrested near his residence, Harrison was carrying a .22
caliber revolver and approximately $155 in cash.
Pearl Gilbert, Harrison's former mother-in-law, testified that
Harrison lived with his uncle, who was ill; that she worked at
Harrison's residence about three and one-half hours a day, five
days a week, taking care of the uncle; that she was there when the
warrant was executed; that, when Harrison picked her up each
morning to take her to work, he usually was wearing his robe, and
would go back to bed when they arrived at his residence; and that
he worked as a hairdresser three days a week, and sometimes less.4
She testified further that Harrison had "sort of a sure thing,
cocky-like attitude" about the case against him, and had told her
that the Government did not have a case because he should have been
arrested in his residence.
One of the narcotics officers who executed the search warrant
testified that the residue on top of the dresser indicated that
narcotics were being made ready for sale; that it was not unusual
to find a weapon with contraband when investigating drug dealers,
because they like to keep weapons around them to protect their
business; and that it was not unusual to find large amounts of cash
around drug dealers. On cross-examination, the officer testified
4
The government attempted to introduce evidence that Harrison
did not pay child support, in an attempt to show that the money
found on him and in his residence was proceeds from drug-
trafficking, but the district court refused to allow it.
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that it would not be impossible for an individual to use two to
three grams of crack cocaine a day, and that, if so, the 49 grams
seized from Harrison's residence could have been used in
approximately two weeks. The officer also testified on cross that
the marijuana could have been intended for personal use. On
redirect, however, the officer testified that, based on his
experience and training, he had no doubt that Harrison was a
dealer, and that the crack cocaine in his possession was intended
for distribution.
The Government called a DEA agent as an expert witness on
drug-trafficking and firearm usage. He testified that, based on
the amount of crack cocaine seized and the way it was packaged and
cut, Harrison intended to distribute it; and that it would not be
unusual for a drug dealer to possess a .22 caliber firearm, such as
the one found in the drawer with the cocaine, to protect and
facilitate drug-trafficking activities. On cross-examination, the
agent testified that, if an individual used a gram of crack cocaine
three times a day, the individual could use the amount seized from
Harrison in a couple of weeks. On redirect, however, he testified
that the street value of the cocaine seized from Harrison was
$2,800, and that, because it consisted of a $750 cookie and another
cookie cut into $50 slabs, he believed that the cocaine was
intended for distribution, rather than personal use.
Considering this evidence in the light most favorable to the
Government, including the reasonable (and obvious) inferences that
could be drawn from it, we conclude that a rational juror could
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have found beyond a reasonable doubt that Harrison possessed the
crack cocaine with the intent to distribute it, and that the .22
caliber pistol found in the drawer next to the cocaine was used to
facilitate his drug-trafficking activities.
B.
Rule 31 of the Federal Rules of Criminal Procedure provides,
in pertinent part, that "[t]he defendant may be found guilty of an
offense necessarily included in the offense charged". Fed. R.
Crim. P. 31(c). "The purpose of this protection is to prevent
juries from improperly resolving their doubts in favor of
conviction when one or more of the elements of the charged offense
remain unproven, but the defendant seems plainly guilty of some
offense." United States v. Browner, 889 F.2d 549, 551 (5th Cir.
1989) (Browner I) (emphasis in original). Harrison contends that
the district court erred by overruling his objection to the jury
charge; he maintained that it should include an instruction which
would have allowed the jury to find him guilty of the lesser-
included offense of simple possession of a controlled substance.
The Supreme Court has stated that a defendant is entitled to
a lesser-included offense instruction when some of the elements of
the crime charged constitute a lesser crime, there is an
evidentiary basis for a finding of guilt on the lesser offense, and
"the charged greater offense requires the jury to find a disputed
factual element which is not required for conviction of the lesser-
included offense". Sansone v. United States, 380 U.S. 343, 350
(1965). "[T]wo independent prerequisites" must be met before a
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defendant is entitled to an instruction on a lesser-included
offense: "(1) the elements of the lesser offense must be a subset
of the elements of the charged offense; and (2) the evidence at
trial must be such that a jury could rationally find the defendant
guilty of the lesser offense, yet acquit him of the greater".
Browner I, 889 F.2d at 550-51; United States v. Deisch, 20 F.3d
139, 142 (5th Cir. 1994).
Our cases have not stated explicitly the standard of review
for a challenge to the refusal of a lesser-included offense
instruction. See, e.g., United States v. Garcia, 27 F.3d 1009,
1014-15 (5th Cir.) (standard of review unstated), cert. denied, ___
U.S. ___, 115 S. Ct. 531 (1994); Deisch, 20 F.3d at 142-53 (same);
United States v. Doyle, 956 F.2d 73, 74-76 (5th Cir. 1992) (same);
United States v. Browner, 937 F.2d 165, 167-72 (5th Cir. 1991)
(Browner II) (same); Browner I, 889 F.2d at 550-55 (same); United
States v. Chase, 838 F.2d 743, 746-47 (5th Cir.) (same), cert.
denied, 486 U.S. 1035 (1988).5 For the two-part test, quoted
5
See also United States v. Buchner, 7 F.3d 1149, 1152-54 (5th
Cir. 1993), cert. denied, ___ U.S. ___, 114 S. Ct. 1331 (1994);
United States v. Howard, 991 F.2d 195, 198 (5th Cir.), cert.
denied, ___ U.S. ___, 114 S. Ct. 395 (1993); United States v.
Greenwood, 974 F.2d 1449, 1459 (5th Cir. 1992), cert. denied, ___
U.S. ___, 113 S. Ct. 2354 (1993); United States v. Moore, 958 F.2d
646, 649-50 (5th Cir. 1992); United States v. Valencia, 957 F.2d
1189, 1196-98 (5th Cir.), cert. denied, ___ U.S. ___, 113 S. Ct.
254 (1992); United States v. Kim, 884 F.2d 189, 194 (5th Cir.
1989); United States v. Williams, 775 F.2d 1295, 1301-02 (5th Cir.
1985), cert. denied, 475 U.S. 1089 (1986); United States v.
Collins, 690 F.2d 431, 437-38 (5th Cir. 1982), cert. denied, 460
U.S. 1046 (1983); United States v. Bey, 667 F.2d 7, 11 (5th Cir.
1982); United States v. Henderson, 588 F.2d 157, 160 (5th Cir.),
cert. denied, 440 U.S. 975 (1979); United States v. Flint, 534 F.2d
58, 60 (5th Cir.), cert. denied, 429 U.S. 924 (1976); United States
v. Rogers, 504 F.2d 1079, 1084 (5th Cir. 1974), cert. denied, 422
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supra, for when a lesser-included offense instruction should be
given, our court appears to have applied de novo review for the
first prong (whether elements of lesser are subset of greater), and
an abuse of discretion standard for the second (whether jury could
rationally find lesser and acquit on greater). See Deisch, 20 F.3d
at 142-53; United States v. White, 972 F.2d 590, 596 (5th Cir.
1992) (parties agreed that elements of lesser-included offense were
subset of elements of charged offense; abuse of discretion standard
of review expressly applied in determining whether rational jury
could have found that defendants possessed drugs but had no intent
to distribute them), cert. denied, ___ U.S. ___, 113 S. Ct. 1651
(1993); Browner I, 889 F.2d at 550-51. See also United States v.
Vaandering, 50 F.3d 696, 703 (9th Cir. 1995) (clarifying apparent
inconsistency in case law to hold that first prong of inquiry is
reviewed de novo and second for abuse of discretion).
Whether, pursuant to de novo review, the elements of the
lesser offense are a subset of the elements of the charged offense
is not in dispute. The Government agrees correctly that the first
prong of the test is satisfied.
The second part of our inquiry requires determining whether
the district court abused its discretion in concluding that, based
on the evidence, a jury could not rationally find Harrison guilty
of simple possession, yet acquit him of possession with the intent
U.S. 1042 (1975); United States v. Methvin, 441 F.2d 584, 585-86
(5th Cir.), cert. denied, 404 U.S. 839 (1971); Escobar v. United
States, 388 F.2d 661, 665-66 (5th Cir. 1967), cert. denied, 390
U.S. 1024 (1968).
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to distribute.6 To show error, Harrison relies on the cross-
examination of the narcotics officer and DEA agent; both testified
that approximately 49 grams of crack cocaine, the amount seized
from Harrison's residence, could be used by a single individual in
approximately two weeks, and that the marijuana found in Harrison's
bedroom could have been intended for personal use rather than for
distribution.
This testimony, when considered in isolation, arguably might
support a lesser-included offense instruction for simple
possession; but, when considered in the context of the other
evidence, it does not. The testimony was on cross-examination; the
questions dealt with a hypothetical user, who used one gram of
crack three times a day. There was no evidence that Harrison used
crack cocaine, or that he used three grams a day, and the
hypothetical questions did not ask the Government witnesses to
assume that Harrison had such a habit. Moreover, the hypothetical
6
The primary thrust of Harrison's defense at trial was that he
did not possess the cocaine. As noted, Harrison did not testify or
otherwise present any evidence, and defense counsel did not argue
to the jury that Harrison possessed the cocaine for his personal
use rather than for distribution. In his opening statement,
defense counsel stated that he intended to show that the cocaine
was placed in Harrison's room by the confidential informant;
likewise, in his closing argument, counsel stated that the
informant placed the cocaine in Harrison's home. Nevertheless, "it
is well established that a criminal defendant may raise
inconsistent defenses, and is entitled to an instruction on any
defense or lesser-included offense whenever there is evidence
sufficient for a reasonable jury to find in [his] favor, even when
the defense and lesser-included offense are inconsistent with each
other". Browner I, 889 F.2d at 555. However, in Browner I, unlike
the present case, denial of the element present in the greater but
not in the lesser offense (there, the intent to inflict bodily
injury) "was the primary thrust of her [the defendant's] defense
and of her testimony." Id.
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questions did not encompass the facts and circumstances surrounding
Harrison's possession of the crack cocaine, such as his possession
of a whole $750 cookie and $50 slabs with a street value of nearly
$3,000, and the presence of the loaded weapon and cash in the same
drawer as the crack.
Considering those facts and circumstances, as well as the same
witnesses' unrebutted testimony that such facts and circumstances
were consistent with an intent to distribute and not with
possession for personal use, no rational juror could conclude that
Harrison possessed the crack for his personal use, with no intent
to distribute it. Again, "[w]hile a defendant's request for a
lesser-included offense charge should be freely granted, there must
be a rational basis for the lesser charge and it cannot serve
merely as a device for defendant to invoke the mercy-dispensing
prerogative of the jury." United States v. Collins, 690 F.2d 431,
438 (5th Cir. 1982), cert. denied, 460 U.S. 1046 (1983) (internal
quotation marks and citation omitted). Because a rational basis
for the lesser-included offense instruction was lacking, the
district court did not abuse its discretion in refusing it.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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