U.S. v. Deisch

• Decision Date: 25 April 1994
• Docket Number: No. 93-7257,93-7257
• Citation: 20 F.3d 139
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Terry Ann DEISCH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 139

20 F.3d 139

UNITED STATES of America, Plaintiff-Appellee, v. Terry Ann DEISCH, Defendant-Appellant.

No. 93-7257.

United States Court of Appeals,

Fifth Circuit.

April 25, 1994.

Kenneth Coghlan, Andrew K. Howorth (Court-appointed), Hickman, Goza & Gore, Oxford, MS, for appellant.

Calvin D. Buchanan, Asst. U.S. Atty., Alfred E. Moreton, III, U.S. Atty., Oxford, MS, for appellant.

Appeal from the United States District Court for the Northern District of Mississippi.

Before REAVLEY, GARWOOD and HIGGINBOTHAM, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Terry Ann Deisch (Deisch) appeals her conviction and five year sentence for simple possession of cocaine base in violation of 21 U.S.C. Sec. 844. Deisch asserts that the district court erred in (1) submitting the section 844 violation as a lesser included offense at all; (2) the wording of the charge on the section 844 offense; and (3) allowing the government to introduce in evidence an untimely disclosed statement. We reverse in part, affirm in part, and remand for resentencing.

Facts and Proceedings Below

On August 15, 1992, Lambert, Mississippi, Police Sergeant Leon Williams (Williams) received information from a confidential informant that David Dawson (Dawson) had been in town selling drugs and planned to return for the same purpose later that evening. The informant stated that Dawson would return to Lambert at approximately 11:00 p.m. and would be driving a 1985 black Cadillac bearing Arkansas license plate WAB-185.

Williams contacted Sergeant Roy Sandefer (Sandefer) of the Mississippi Bureau of Narcotics and told him about the informant's tip. The two officers met at approximately 10:00 p.m. and began driving an unmarked car through Lambert. As the officers were driving north of Lambert, on Route 3, they passed a car that matched the informant's description of the Cadillac. The officers turned around and followed the Cadillac. Upon seeing that the Cadillac's license plate matched the informant's description, the officers turned on their car's flashing lights. The police car followed the Cadillac into an apartment complex parking lot and pulled up behind it to block its means of exiting.

Driving the Cadillac was Deisch and in the passenger seat was her boyfriend Dawson. Both Deisch and Dawson were residents of West Helena, Arkansas. Before the officers reached the car, Dawson took plastic baggies of cocaine base, commonly known as crack cocaine, from inside his pants and threw them at Deisch, ordering her to hide them. Deisch, who was seven months pregnant at the time, hid the baggies inside her bra and panties.

Williams and Sandefer instructed the couple to exit to the rear of the Cadillac. At the rear of the vehicle, Sandefer explained to the couple why they had been stopped. Sandefer then shined a flashlight through the driver-side window and saw what appeared to be cocaine on the seat. Deisch and Dawson were read their rights, arrested for possession of cocaine, and taken to jail. At that point, Dawson stated "If you find any dope ... I'm going to claim it. It's mine."

A later strip search of Deisch revealed she was carrying 3 or 4 baggies of crack cocaine weighing a total of 64.98 grams in her bra, and 3 round rocks of crack cocaine weighing in all about 1.34 grams in her panties. An inventory search of the car also uncovered a few more small rocks of crack cocaine together weighing approximately .35 grams, and, among other things, an electronic scale, rolling papers, a scanner, a pager, and another license plate.

On October 2, 1992, a grand jury indictment was returned charging Deisch ¹ with one count of conspiracy to possess with intent to distribute "approximately 66 grams of cocaine base, commonly known as 'crack,' a Schedule II narcotic controlled substance," in violation of 21 U.S.C. Secs. 841(a), 841(b)(1)(A), and 846 (count one), and one count of possession with intent to distribute of "approximately 66 grams of cocaine base commonly known as 'crack,' a Schedule II narcotic controlled substance," in violation of 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(A) and 18 U.S.C. Sec. 2 (count two). ² At trial Deisch took the position that she was not guilty due to duress. Deisch testified that she did not know drugs were in the car until after the police began following them and Dawson threw the plastic bags at her. Deisch said that she hid the drugs because she was scared to disobey Dawson since, in the past, he had threatened her with guns and hit her.

At the close of the evidence, the district court, over Deisch's objection, gave an instruction on simple possession of "a controlled substance, cocaine base, crack" in violation of 21 U.S.C. Sec. 844(a) as a lesser included offense under count two. ³ Thereafter, the jury acquitted Deisch of both counts of the indictment, but found her guilty of the lesser included offense. Deisch, who had no prior convictions, was sentenced to sixty months in prison followed by three years of supervised release.

On appeal, Deisch argues that the trial court erred by submitting any instruction on section 844 as a lesser included offense. We first address whether or to what extent simple possession of cocaine or cocaine base under section 844(a) may ever be a lesser included offense of possession of cocaine or cocaine base with intent to distribute it contrary to section 841(a)(1). We then turn to Deisch's contentions that in this case any such lesser included offense instruction was improper because duress was a complete defense to both the greater and lesser offenses and because the quantity of crack cocaine involved is not consistent with personal use, so that a finding of guilty of the lesser offense was not a rational alternative to acquittal of the greater. Deisch also complains that the district court erred in the wording of its charge on the lesser included offense, and improperly allowed the government to put in evidence an untimely disclosed statement.

Discussion

I. Lesser Included Offense

Federal Rule of Criminal Procedure 31(c) provides that a "defendant may be found guilty of an offense necessarily included in the offense charged." The district court may give a lesser included offense instruction if, but only if, (1) the elements of the offense are a subset of the elements of the charged offense and (2) the evidence at trial permits a jury to rationally find the defendant guilty of the lesser offense yet acquit him of the greater. United States v. Browner, 889 F.2d 549, 550-51 (5th Cir.1989) (Browner I ). We address these prerequisites in turn.

A. Elements Test

The statutory elements test is the proper method for "determining when a federal criminal defendant is entitled to a lesser included offense instruction." United States v. Buchner, 7 F.3d 1149, 1152 (5th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1331, 127 L.Ed.2d 378 (1994). See also United States v. Browner, 937 F.2d 165, 169 (5th Cir.1991) (Browner II ) (concluding that the Supreme Court in Schmuck v. United States, 489 U.S. 705, 109 S.Ct 1443, 103 L.Ed.2d 734 (1989), adopted the statutory elements test). Pursuant to the statutory elements test "an offense is not lesser included unless each statutory element of the lesser offense is also present in the greater offense." Browner II, 937 F.2d at 168. In contrast to the "indictment test," under the statutory elements test the mere fact that the particular indictment in charging the greater offense includes allegations embracing all statutory elements of the putative lesser offense does not suffice to render the latter an included offense, for the statutory elements test looks only to the statutory elements of both offenses. Id. ⁴ Thus, the district court should have given a lesser included offense instruction only if all of the elements of simple possession pursuant to section 844 were also elements of possession with intent to distribute pursuant to section 841(a)(1).

1. Elements under section 844--cocaine base

Section 844(a) provides in part:

" It shall be unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order.... Any person who violates this subsection may be sentenced to a term of imprisonment of not more than 1 year ... except that if he commits such offense after a prior conviction ... for any drug or narcotic offense ... he shall be sentenced to a term of imprisonment for not less than 15 days but not more than 2 years ... except, further, that if he commits such offense after two or more prior convictions ... for any drug or narcotic offense ... he shall be sentenced to a term of imprisonment for not less than 90 days but not more than 3 years.... Notwithstanding the preceding sentence, a person convicted under this subsection for the possession of a mixture or substance which contains cocaine base shall be imprisoned not less than 5 years and not more than 20 years, and fined a minimum of $1,000, if the conviction is a first conviction under this subsection and the amount of the mixture or substance exceeds 5 grams, if the conviction is after a prior conviction for the possession of such a mixture or substance under this subsection becomes final and the amount of the mixture or substance exceeds 3 grams, or if the conviction is after 2 or more prior convictions for the possession of such a mixture or substance under this subsection becomes final and the amount of the mixture or substance exceeds 1 gram." 21 U.S.C. Sec. 844(a) (West Supp.1993) (bracketed numbering added).

Pursuant to the first and second sentences of section 844(a), a person can be convicted and sentenced for simple possession of any quantity of "a controlled substance"; the maximum confinement varies from one to three years depending on whether the offense was committed after one or two prior drug convictions. ⁵ In accordance with the third sentence of ...