U.S. v. Armstrong, 00-3395

• Citation: 253 F.3d 335
• Decision Date: 19 April 2001
• Docket Number: No. 00-3395,00-3395
• Parties: (8th Cir. 2001) UNITED STATES OF AMERICA, APPELLEE, v. DON A. ARMSTRONG, APPELLANT. Submitted:
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 335

253 F.3d 335 (8th Cir. 2001)

UNITED STATES OF AMERICA, APPELLEE, v. DON A. ARMSTRONG, APPELLANT.

No. 00-3395

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: April 19, 2001

Filed: June 7, 2001

Appeal from the United States District Court for the District of Nebraska.

Before Wollman, Chief Judge, Beam, and Hansen, Circuit Judges.

Wollman, Chief Judge.

Don A. Armstrong appeals from his conviction in district court¹ of possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1). We affirm.

Armstrong was indicted and tried on three counts of possession with intent to distribute methamphetamine as a result of three separate and unrelated offenses. On August 12, 1998, Armstrong was arrested with 35.35 grams of methamphetamine (count I), on September 7, 1998, with 28.02 grams of methamphetamine (count II), and on July 5, 1999, with six packages containing a total of 96.4 grams of methamphetamine (count III). A jury found Armstrong guilty of the lesser included offense of possession of methamphetamine on counts I and II, but guilty of possession with intent to distribute methamphetamine on count III. Armstrong appeals only his conviction on count III, for which he was sentenced to imprisonment for 110 months.

Armstrong essentially argues that we should set aside his conviction because the jury's verdict was inconsistent. During the traffic stop that led to his arrest in July of 1999, Armstrong handed his methamphetamine to a passenger in his car to hide from police. He alleges that the verdict, along with a jury request for clarification of the definitions of "transfer" and "distribute" with respect to the instructions on count III, indicates that the jury improperly construed this action as distribution of the drug.

We are not persuaded by Armstrong's contention that the jury's verdict in his case was actually inconsistent. The conduct charged in count III, and the evidence presented at trial to prove the government's case, differed materially from the conduct charged in counts I and II. Most obviously, the drug quantity charged in count III was significantly larger. We have held that the possession of large drug quantities alone may evidence an intent to distribute. United States v. Ojeda, 23 F.3d 1473, 1476 (8th Cir. 1994); see United States v. Lopez, 42 F.3d 463, 467 (8th Cir. 1994) (discussing the principle that possession of quantities greater than user quantities indicates intent to distribute). In addition, Armstrong had a cellular telephone and .32 caliber handgun² in his possession upon his third arrest, and the methamphetamine was packaged differently than that seized in the first two arrests. Thus, given the material differences in the evidence presented to prove count III and that presented to prove counts I and II, the jury's verdict does not necessarily reflect an inconsistency in its reasoning.

Even if the verdicts were inconsistent, however, reversal would still be inappropriate because there was sufficient evidence to support the verdict on count III. "Inconsistent verdicts are not, on their own, sufficient grounds for reversal or a new trial. A jury may acquit a defendant as to one or more charges for any number of reasons . . . and yet come to the reasonable conclusion that the defendant was guilty of other related charges. " United States v. Whatley, 133 F.3d 601, 606 (8th Cir. 1998) (citations omitted); see United States v. Powell, 469 U.S. 57, 64-65 (1984) (inconsistent verdicts are not grounds for a new trial because "it is unclear whose ox has been gored"). "The only relevant question when reconciling inconsistent verdicts . . . is whether there was enough evidence presented to...