UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 96-50639
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LATARSHA HUNT,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Texas
November 17, 1997
Before WISDOM, JOLLY, and EMILIO M. GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Latarsha Hunt appeals her conviction for possession of cocaine
base with intent to distribute in violation of 21 U.S.C. §
841(a)(1). Finding insufficient evidence to support the verdict,
we reverse, vacate the sentence, and remand for sentencing on the
lesser included offense of simple possession.
I
A confidential informant told police that marijuana was being
sold out of 832 Arthur Walk, which police identified as property
leased to Hunt. Executing a search warrant on those premises,
police officers discovered a brown paper bag containing marijuana
on a coffee table in the living room along with loose tobacco and
cigar labels on the floor. In addition, they found a loaded
handgun under the couch. In Hunt’s bedroom, they discovered 7.998
grams of cocaine base (or “crack”) and a razor blade on a plate on
the top of a dresser. The cocaine was broken into one large rock
and several smaller pieces. Hunt, Dashanta Burton, who is a friend
of Hunt’s, and an unidentified male juvenile were present when the
police entered the house. Hunt was standing near the front door
when police entered, and, according to the testimony of the
officers, did not appear to be expecting the police.
Detective Ruben Rodriguez testified that the cocaine was worth
about $200, an amount that could be doubled depending on how it was
cut, and that it was a distributable amount. Furthermore, he
stated that each of the smaller rocks would be “a lot of crack for
a crack head” and that the rocks are available in sizes smaller
than that size. Brian Cho, a forensic drug analyst, stated that
the amount of cocaine base he usually receives for testing is
around 100 to 200 mg per submission, usually in the form of one
small rock.
Detective Rodriguez also stated, however, that a cocaine base
addict may smoke close to $500 worth in one day. He explained that
although a junkie who had a rock as big as the largest one “would
be in heaven,” it would produce only a three-second high. When
questioned about the razor blade that was found with the cocaine,
he testified that a razor blade is necessary to cut the cocaine
base, either for distribution or, as he conceded on cross-
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examination, for personal use (i.e., to fit in a smoking device).
When questioned about drug paraphernalia, Detective Rodriguez
testified that crack users will smoke from homemade crack pipes,
which can be made from objects such as broken car antennas,
aluminum cans, and aluminum foil. The officers did not find any
smoking devices, such as a smoke pipe, and, according to Detective
Rodriguez, this indicated that no crack cocaine smokers were
present. Furthermore, in his opinion, the tobacco and cigar
wrappings they found were evidence of “blunts” being sold out of
Hunt’s house. He explained that blunts are made by taking the
tobacco out of cigars and replacing it with marijuana and that
“primos” are made by adding crack cocaine to the marijuana. He
stated that in the area of town where Hunt’s house was located,
marijuana and crack are usually sold hand in hand, “like a little
drug store.” On recross, however, he stated that “primos” are one
way that cocaine users smoke cocaine.
Hunt testified that she arrived at home just before the police
officers and that she had not yet entered her bedroom, where the
police officers found the cocaine. She admitted that she used
marijuana, but claimed she did not “indulge” in crack cocaine. She
said she knew the marijuana was in the house, but denied knowledge
of the cocaine being there. She also denied allegations that she
had ever sold drugs. She said she had given a key to the house to
Burton, who was also living in the house, and that Burton had
obtained the marijuana for a “get-together” they were going to have
with a few friends that night. She also admitted she owned the
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gun, but denied owning the tobacco. Wendy Wilson, Hunt’s neighbor
and friend, testified that she had never seen Hunt use or deal
crack cocaine.
Hunt was indicted under § 841(a)(1) for possession of cocaine
base with intent to distribute. The first trial resulted in a hung
jury. During the first and second trials, neither the government
nor the defendant requested that the lesser included offense of
possession be submitted to the jury. Moreover, neither the
government nor Hunt challenged the instructions at trial or on
appeal. In the second trial, the jury returned a verdict of
guilty.
II
On appeal, Hunt contends that the evidence is insufficient to
support the jury's verdict regarding the element of intent to
distribute. She does not contend that the evidence was
insufficient to support possession. In reviewing a challenge to
the sufficiency of the evidence in a criminal case, we will affirm
a conviction if a rational trier of fact could have found that the
evidence established the essential elements of the offense beyond
a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99
S. Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). We consider the
evidence, all reasonable inferences that may be drawn from that
evidence, and all credibility determinations in the light most
favorable to the verdict. See United States v. Salazar, 66 F.3d
723, 728 (5th Cir. 1995). The evidence need not exclude every
reasonable hypothesis of innocence or be wholly inconsistent with
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every conclusion except that of guilt, and the jury is free to
choose among reasonable constructions of the evidence. See id.
If, however, the evidence gives equal or nearly equal
circumstantial support to a theory of guilt and to a theory of
innocence, we will reverse the conviction, as under these
circumstances a reasonable jury must necessarily entertain a
reasonable doubt. See United States v. Sanchez, 961 F.2d 1169,
1173 (5th Cir. 1992).
To establish a violation of 21 U.S.C. § 841(a)(1), the
government must prove the knowing possession of a controlled
substance with the intent to distribute. See United States v.
Skipper, 74 F.3d 608, 611 (5th Cir. 1996). The elements of the
offense may be proved either by direct or circumstantial evidence.
See id.
Intent to distribute may be inferred solely from the
possession of an amount of controlled substance too large to be
used by the possessor alone. See United States v. Prieto-Tejas,
779 F.2d 1098, 1101 (5th Cir. 1986). On the other hand, a quantity
that is consistent with personal use does not raise such an
inference in the absence of other evidence. See Skipper, 74 F.3d
at 611 (holding as a matter of law that 2.89 grams of crack cocaine
alone was insufficient to prove intent, despite testimony
indicating that amount could suggest drug dealing, because it was
“not clearly inconsistent with personal use”); see also Turner v.
United States, 396 U.S. 398, 423, 90 S. Ct. 642, 656, 24 L.Ed.2d
610 (1970) (holding that a small quantity of cocaine, which could
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be for the defendant’s personal use as well as for sale, does not
support an inference of distribution).
Hunt contends that the 7.998 grams of crack cocaine that the
police discovered in her house is insufficient as a matter of law
to infer intent, and we agree. Although the government introduced
testimony that this amount is a distributable amount and that the
individual rocks may be larger than those that Detective Rodriguez
believes are usually smoked or that Cho, the forensic analyst,
usually tests, the testimony also indicated, as in Skipper, that
this amount was also consistent with personal use. In particular,
Detective Rodriguez testified that a crack cocaine user may smoke,
in one day alone, close to $500 worth, an amount that exceeds even
the highest value he assigned to the cocaine found in Hunt’s house.
Furthermore, at oral argument, the government conceded that “the
amount alone, by itself, is not sufficient” to support an inference
of intent to distribute.1
1
In considering the quantity of crack cocaine found in
Hunt’s house, we note that, in a few cases, other circuit courts
rested their decisions that the evidence was sufficient to support
an inference of intent in large part on quantities comparable to
this amount. In United States v. Lamarr, 75 F.3d 964, 973 (4th
Cir. 1996), the court quoted a letter to the editor of the
Washington Post (regarding sentencing), which stated that “‘[f]ive
grams of crack cocaine is the equivalent of 50 street doses’” and
that “‘anybody holding that much crack is dealing.’” The court
concluded that the 5.72 grams the defendant possessed was roughly
the amount a strong user would use in two months and held that,
combined with testimony that the defendant was dealing, the
evidence was sufficient to infer intent. See also United States v.
Haney, 23 F.3d 1413 (8th Cir. 1994)(emphasizing the testimony of a
criminologist that if an addict ingested 6.57 grams of crack in one
or two days he would probably die; but also relying on confidential
informant’s information that defendant would be selling crack in
exchange for food stamps, the $371 cash and $97 in food stamps
found on defendant, and the fact that cocaine was cut into $20
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We must therefore examine the other evidence to determine
whether it, in conjunction with the quantity of cocaine found,
suffices to establish the requisite intent to distribute. See
United States v. Munoz, 957 F.2d 171, 174 (5th Cir. 1992) (noting
that even a small quantity of cocaine is sufficient to infer intent
when augmented by the presence of evidence such as distribution
paraphernalia or large quantities of cash). As with the quantity
of drugs, however, “[p]araphernalia that could be consistent with
personal use does not provide a sound basis for inferring intent to
distribute.” Skipper, 74 F.3d at 611. As evidence of intent to
distribute, the government points to the razor blade, the absence
of smoking pipes or other such instruments, the evidence of blunts,
the gun, and Hunt’s testimony. In Skipper, the government
similarly argued that a straight-edged razor and the absence of
smoking paraphernalia suggested the intent to distribute. Id. We
held that, even viewed in the light most favorable to the
government, the evidence was insufficient to prove intent beyond a
reasonable doubt. The same conclusion is warranted here.
Detective Rodriguez testified that although a razor blade is needed
pieces). Here, however, the only testimony the jury heard
regarding the quantity of drugs was that a crack cocaine user can
consume in one day, a value of crack greater than that found in
Hunt’s house and that the size of the individual rocks may be
larger than those usually smoked by crack users or those tested by
Brian Cho. Furthermore, we note again the government’s concession
at oral argument that this amount, by itself, is not sufficient to
support an inference of intent. Therefore, although we recognize
the import of the quantity in determining the intent to distribute
controlled substances, we conclude that the quantity of cocaine
base at issue here, as evaluated by the testimony presented, does
not support an inference of intent to distribute.
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to cut crack cocaine for distribution, it is also needed to cut the
cocaine for personal use. Furthermore, even though Rodriguez
testified that the evidence of blunts indicated drug sales, he also
said that the evidence indicated use, namely, the smoking of
cocaine in the form of primos. Because this evidence is also
consistent with personal use, we do not believe it provides a sound
basis for inferring that Hunt intended to distribute the cocaine.
The government also points to the gun found under her couch as
evidence of Hunt’s intent to distribute. We have often recognized
that guns are tools of the trade in the drug business. See United
States v. Martinez, 808 F.2d 1050, 1057 (5th Cir. 1987). In United
States v. Lucien, 61 F.3d 366, 375 (5th Cir. 1995),2 the government
argued that three guns that were found in the defendant’s apartment
were evidence that he was distributing cocaine base. In response,
we noted that “[a]lthough we do not discount the prevalence of guns
in drug trafficking, we do not place undue weight on the presence
of the guns in this case because [the defendants] could have untold
reasons, nefarious and otherwise, for keeping guns in the
apartment.” Id. at 375-76; see also United States v. Gibbs, 904
F.2d 52, 59 (D.C. Cir. 1990) (stating that “[w]hile the presence of
2
In Lucien, the defendant was convicted of possession with
intent to distribute cocaine base in violation of § 841(a)(1).
Upon executing a search warrant, the police found 16.48 grams of
crack cocaine, three weapons, over $1200 cash, and a plastic bag
with several aluminum foil packets. We found that the evidence was
sufficient to support Lucien’s conviction under § 841(a)(1). We
reversed the conviction, however, and remanded the case for
retrial, holding that because a reasonable jury could convict
Lucien of possession but acquit him of possession with intent to
distribute, the district court had erred in refusing to give the
requested lesser included offense instruction.
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weapons may be a factor in considering whether the defendants
intended to distribute the cocaine, the mere presence of weapons is
not, in and of itself, dispositive of such intent”). The reasoning
in Lucien applies with equal force to this case. Hunt’s gun was
found in her residence, under a couch, and not with the cocaine.
Furthermore, Hunt made no move toward the gun when the police
entered, and she admitted when asked that she did have a gun in the
house. This evidence can be contrasted with cases in which a
weapon was found in a more incriminating context. See, e.g.,
United States v. Harrison, 55 F.3d 163, 165 (5th Cir.) (noting that
loaded .22 caliber pistol and ammunition were found next to 49.32
grams of cocaine base in dresser drawer), cert. denied, ___ U.S.
___, 116 S. Ct. 324, 133 L.Ed.2d 225 (1995); United States v.
Perez, 648 F.2d 219, 220-21 (5th Cir. Unit B June 1981) (noting
that when defendant noticed police observing him feeding bales of
marijuana on conveyor belt to boat, he ran into house and was
apprehended as he reached toward a shelf on which there were two
loaded weapons). Unconnected with any such circumstances, however,
the gun is no more probative of distribution of drugs than of
other, non-nefarious purposes for which one may keep a gun. We
therefore cannot affirm Hunt’s conviction based on the presence of
the gun.
The government also argues that the jury could have rejected
Hunt’s testimony that she had no knowledge of the cocaine and that
Hunt’s denial of use of cocaine necessitates a conclusion that the
cocaine was kept on the premises for distribution. On appeal,
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however, Hunt does not challenge the jury’s finding that she
possessed the cocaine. Furthermore, although denial of personal
consumption may be a factor in inferring intent to distribute in
certain circumstances, see Munoz, 957 F.2d at 174, we have stated
that a defendant’s “denial of guilt itself should not be permitted
to become evidence of guilt.” United States v. Sutherland, 428
F.2d 1152, 1157 (5th Cir. 1970) (distinguishing “a mere denial” of
guilt from an affirmative assertion of an alibi or other
explanation for the behavior). Accordingly, we reject the
government’s argument that Hunt’s denial of use leads to the
inference that she intended to distribute the crack.
When we have concluded that the evidence presented at trial
was sufficient to support an inference of intent to distribute, we
have pointed to evidence that is not as equally probative of
possession as of distribution. See, e.g., Lucien, 61 F.3d at 376
(over $1200 cash, three weapons, and a plastic bag with several
aluminum foil packets); United States v. Pigrum, 922 F.2d 249, 251
(5th Cir. 1991) (two sets of scales, coffee cup containing a test
tube, cutting agent); United States v. Onick, 889 F.2d 1425, 1430-
31 (5th 1989) (drug paraphernalia, particularly 4,063 empty
gelcaps, and testimony that dealers package drugs in these gelcaps
for street distribution); United States v. Prieto-Tejas, 779 F.2d
1098, 1101 (5th Cir. 1986) (value of cocaine between $2,200 and
$9,000). We do not, however, see any evidence in this case, viewed
individually or collectively, that is more probative of
distribution than of possession. We therefore hold that a
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reasonable jury could not conclude beyond a reasonable doubt that
Hunt intended to distribute the cocaine. We accordingly reverse
Hunt’s conviction for possession with intent to distribute.
III
The government asked us to remand for entry of judgment and
for sentencing on the lesser included offense of simple possession
if we found the evidence insufficient to support the element of
intent to distribute. In her brief, Hunt requested a judgment of
acquittal if we found the evidence insufficient to support the
conviction for possession with intent to distribute. At oral
argument, however, defense counsel conceded that we should direct
entry of judgment on the lesser included offense of misdemeanor
possession under 21 U.S.C. § 844(a).
In certain limited circumstances, we may exercise our power
under 28 U.S.C. § 2106 and reduce a conviction to a lesser included
offense.3 See Skipper, 74 F.3d at 612 (reducing defendant’s §
841(a)(1) conviction to a § 844(a) conviction upon finding that the
evidence was insufficient as a matter of law to support the element
of intent to distribute); see also Rutledge v. United States, ___
U.S. ___, 116 S. Ct. 1241, 1250, 134 L.Ed.2d 419 (1996) (stating
that “federal appellate courts appear to have uniformly concluded
that they may direct the entry of judgment for a lesser included
3
Section 2106 provides as follows: “The Supreme Court or
any other court of appellate jurisdiction 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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offense when a conviction for a greater offense is reversed on
grounds that affect only the greater offense” and that it “has
noted the use of such a practice with approval”). Those
circumstances have been outlined as follows: “It must be clear (1)
that the evidence adduced at trial fails to support one or more
elements of the crime of which appellant was convicted, (2) that
such evidence sufficiently sustains all the elements of another
offense, (3) that the latter is a lesser included offense of the
former, and (4) that no undue prejudice will result to the
accused.” Allison v. United States, 409 F.2d 445, 451 (D.C. Cir.
1969) (cited with approval in Rutledge, 116 S. Ct. at 1250 n.15);
see also United States v. Smith, 13 F.3d 380, 383 (10th Cir. 1993)
(suggesting that the referred-to prejudice generally arises when
the defenses presented to the jury would have differed).
In light of our reversal of Hunt’s conviction, we find the
first prong of the Allison test satisfied. We further find that
the third prong is satisfied by our decision in United States v.
Deisch, in which we held that simple possession under § 844(a) is
a lesser included offense of § 841(a)(1). See United States v.
Deisch, 20 F.3d 139, 152 (5th Cir. 1994) (holding that even if the
indictment alleges that the controlled substance is cocaine base,
felony possession, which requires that the substance be cocaine
base, cannot be a lesser included offense of § 841(a)(1), but that
simple possession may be a lesser included offense of § 841(a)(1)).
With regard to the second prong, we note that Hunt does not
challenge the sufficiency of the evidence regarding possession and
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that her sole argument on appeal is that the element of intent to
distribute is not sufficiently supported by the evidence. In
Skipper, we stated that “[b]ecause 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.” Skipper, 74 F.3d at
612. We find the same to be true in this case: the jury
necessarily found all of the elements of simple possession in
rendering its verdict.
Hunt does not argue that a reduction to simple possession
would result in undue prejudice to her. In fact, as noted above,
at oral argument, defense counsel agreed that such a result was
warranted under this circuit’s case law.4 We note again that Hunt
has conceded the element of possession on appeal, challenging only
the element of intent. We therefore find that reducing Hunt’s
conviction to possession will occasion her no undue prejudice. See
Smith, 13 F.3d at 383 (remanding for resentencing on § 841(a)(1),
a lesser included offense of § 860, because “the only prejudice Mr.
Smith suggests is that he will be convicted of a proven lesser
included offense” and that “[t]his is not the undue prejudice
contemplated by the test set forth in Allison”).
4
At oral argument, defense counsel stated that Deisch and
United States v. Fitzgerald compel us to reduce the conviction to
possession. See Deisch, 20 F.3d at 152 (reversing conviction for
felony possession and remanding for sentencing on misdemeanor
possession, both under § 844(a)); United States v. Fitzgerald, 89
F.3d 218 (5th Cir.) (affirming conviction of felony possession
under § 844(a)), cert. denied, ___ U.S. ___, 117 S. Ct. 446, 136
L.Ed.2d 342 (1996). The government cited Skipper for the same
proposition.
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We pause, however, to question whether we can direct the entry
of judgment on a lesser included offense when the district court
did not instruct the jury that it could find the defendant guilty
of that lesser included offense. Although Skipper does not mention
whether the jury was instructed that it could find the defendant
guilty of the lesser included offense, it does not explicitly
require that the jury be so instructed.5 In United States v.
Mitcheltree, the Tenth Circuit noted that cases in which courts had
remanded for entry of judgment on the lesser included offense
involved either an instruction or some type of concession. See
United States v. Mitcheltree, 940 F.2d 1329, 1352 & n.17 (10th Cir.
1991) (declining to enter misdemeanor convictions on two counts and
instead remanding for new trial because no lesser included offense
5
Although many cases disclose that the jury was instructed
on the lesser included offense, see, e.g., United States v.
Boissoneault, 926 F.2d 230, 235 (2d Cir. 1991), it appears to be a
separate requirement only in the Ninth Circuit. See, e.g., United
States v. Dinkine, 17 F.3d 1192, 1198 (9th Cir. 1994). Other
circuit courts have remanded on the lesser included offense even
when the jury was not instructed on it, generally under conditions
which did not demonstrate any prejudice to the defendant. See,
e.g., United States v. LaMartina, 584 F.2d 764, 766-67 (6th Cir.
1978) (holding that although district court erred in refusing to
instruct on lesser included offense, sentence should be vacated and
case remanded for sentencing on lesser included offense as there
was sufficient evidence to support the lesser but not the greater
offense); United States v. Cobb, 558 F.2d 486, 489 (8th Cir. 1977)
(remanding for resentencing on lesser included offense because jury
must necessarily have found each element of lesser included
offense, even though defendant declined district court’s offer of
an instruction on the lesser included offense); United States v.
Melton, 491 F.2d 45, 57-58 (D.C. Cir. 1973) (remanding for
sentencing on lesser included offense because jury necessarily
found the facts required for conviction of the lesser included
offense and there was no question as to the sufficiency of that
evidence, thereby amending prior opinion, in which it had entered
judgment of acquittal because the government had chosen at trial to
seek conviction only on the greater offense).
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instructions were given and neither party made any concessions on
the issues in dispute). Applying Mitcheltree’s approach to this
case, we find that the lack of instruction on the lesser included
offense was not unduly prejudicial to Hunt, as she has conceded the
element of possession. Furthermore, we note that Hunt did not
challenge our power to reduce her conviction despite the lack of
instruction. We therefore remand the case with instructions to
enter a judgment of guilt of simple possession under 21 U.S.C. §
844(a) and to sentence Hunt for that offense.
For the foregoing reasons, Hunt’s conviction is REVERSED, the
sentence is VACATED, and the cause is REMANDED with instructions.
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United States v. Hunt
Court: Court of Appeals for the Fifth Circuit
Date filed: 1997-11-17
Citations: 129 F.3d 739
Copy CitationsCombined Opinion