U.S. v. Finley

• Decision Date: 26 January 2007
• Docket Number: No. 06-50160.,06-50160.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jacob Pierce FINLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

477 F.3d 250

UNITED STATES of America, Plaintiff-Appellee, v. Jacob Pierce FINLEY, Defendant-Appellant.

No. 06-50160.

United States Court of Appeals, Fifth Circuit.

January 26, 2007.

Joseph H. Gay, Jr., Mark Randolph Stelmach (argued), Asst. U.S. Attys., San Antonio, TX, for U.S.

Thomas S. Morgan (argued), Law Office of Thomas S. Morgan, Midland, TX, for Finley.

Appeal from the United States District Court for the Western District of Texas.

Before KING, WIENER, and CLEMENT, Circuit Judges.

KING, Circuit Judge:

Defendant-appellant Jacob Pierce Finley appeals his conviction on one count of aiding and abetting possession with intent to distribute a controlled substance (methamphetamine) in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. He argues, inter alia, that the district court erred by not instructing the jury as to simple possession of methamphetamine and by denying his motion to suppress text messages and call records recovered in a warrantless, post-arrest search of his cell phone. For the reasons that follow, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 19, 2005, officers with the Midland, Texas Police Department ("MPD"), working in conjunction with the Drug Enforcement Administration ("DEA"), conducted a controlled purchase of methamphetamine from Mark Brown. Amy Stratton, a cooperating source acting under the direction of the MPD, called Brown to arrange a methamphetamine deal. Stratton and Brown agreed that Stratton would purchase approximately six grams of methamphetamine for $600. Brown requested that Stratton travel to his residence to buy the narcotics, but at the direction of the police Stratton informed Brown that she was at a truck stop in Midland and that she had no transportation to get to Brown's home. Brown agreed to meet Stratton at the truck stop. The police drove Stratton to the truck stop and gave her $600 in marked bills.

Brown asked defendant-appellant Jacob Pierce Finley to drive him to the truck stop, and Finley agreed to do so. Driving his white Southwest Plumbing van — Southwest Plumbing was Finley's uncle's company and was also Finley's employer — Finley picked Brown up at Brown's residence and drove him to the truck stop. Once they arrived, Stratton approached the van's passenger side where Brown was sitting. Stratton gave Brown the $600 in marked bills, and Brown gave Stratton a cigarette package. Tucked inside the clear wrapper surrounding the cigarette package was a plastic bag containing a white crystalline substance; laboratory analysis of this substance later revealed that it was a 3.1-gram mixture containing 1.4 grams of pure methamphetamine.

Finley then drove away from the truck stop; neither he nor Brown ever exited the van while there. MPD officers waiting nearby performed a traffic stop on the van approximately three to five miles from the truck stop. Once Finley and Brown were detained, the police searched the van and found the same marked bills used in the transaction in a trash can located between the driver's and passenger's seats.

The police also found two medicine bottles in the trash can, one with an orange cap and the other with a white cap. In the orange-capped bottle were five small plastic bags, two of which contained a white crystalline substance; laboratory analysis of this substance later revealed that in total it was a 2.6-gram mixture that included 1.5 grams of pure methamphetamine. The white-capped bottle had a label with the name "Finley" on it. In this bottle were a small, homemade, glass smoking pipe with methamphetamine residue in it and a small piece of straw that could be used to snort methamphetamine. Also inside the bottle was a plastic bag containing a white crystalline substance; laboratory analysis of the substance revealed that it was 1.6 grams of dimethyl sulfone, a substance similar in appearance to methamphetamine that methamphetamine dealers commonly use to "cut" or add bulk to pure methamphetamine.

The police arrested Finley and Brown at the scene of the traffic stop. They searched Finley's person and seized a cell phone that was located in his pocket. The phone belonged to Southwest Plumbing and had been issued to Finley for work, but Finley was permitted to use the phone for personal purposes as well.

MPD officers transported Finley and Brown to Brown's residence, where other MPD officers and DEA agents were conducting a search pursuant to a warrant.¹ DEA Special Agent Dean Cook and MPD Sergeant Russell interviewed Finley outside the home. Finley admitted to some past cocaine and methamphetamine use, including some methamphetamine he received from Brown three days prior. He also admitted to getting his friends marijuana from Brown on numerous occasions. But he denied any involvement in the sale of methamphetamine to Stratton.

During the questioning, an MPD officer handed Finley's cell phone to Special Agent Cook. Special Agent Cook searched through the phone's call records and text messages; several of the text messages appeared to him to be related to narcotics use and trafficking.² After Special Agent Cook and Sergeant Russell confronted Finley with some of the text messages, Finley averred that most of the messages referred to marijuana, not methamphetamine and he admitted to distributing marijuana at least once.

The grand jury charged Brown and Finley in a one-count indictment with possession with intent to distribute methamphetamine, aided and abetted by each other, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Brown pleaded "guilty" pursuant to a plea agreement. Finley pleaded "not guilty" and proceeded to a jury trial.

The government argued at trial that Finley knowingly drove Brown to the truck stop so that Brown could sell methamphetamine to Stratton and that Finley therefore aided and abetted Brown's possession with intent to distribute methamphetamine. Finley's defense was that, even though he in fact aided and abetted Brown, he did not do so knowingly because he did not know that the purpose of the trip to the truck stop was to sell methamphetamine.

Brown testified that during the approximately six-month period prior to his arrest, he was in daily contact with Finley. Brown also testified that Finley had purchased methamphetamine from him five to ten times and that Finley distributed some of the methamphetamine he bought from Brown. Brown alleged that on August 19, 2005, Finley contacted him to purchase methamphetamine, that Brown told Finley he needed a ride to the truck stop to drop off methamphetamine, and that Finley agreed to give him a ride in exchange for a little extra methamphetamine. According to Brown's testimony, when Finley picked him up he gave Finley 0.3 grams of methamphetamine, which included 0.1 extra grams in exchange for the ride. On cross examination, Brown acknowledged that after his arrest he told MPD officers, inter alia, that he asked Finley to take him to the truck stop to purchase cigarettes.

Finley testified that Brown asked him for a ride to get some cigarettes and that he agreed to take him to the truck stop. He averred that he had not known of the real purpose for the trip until after the drug transaction had occurred.

The jury convicted Finley, and he now appeals.

II. LESSER-INCLUDED-OFFENSE INSTRUCTION

Finley first contends that the district court erred in refusing his request for a lesser-included-offense instruction. Finley requested that the jury be permitted to consider, in addition to possession with intent to distribute, the lesser offense of simple possession of a controlled substance. The district court denied Finley's request.

A. Background

Rule 31(c)(1) of the Federal Rules of Criminal Procedure provides that "[a] defendant may be found guilty of ... an offense necessarily included in the offense charged." The defendant is afforded this protection "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. Harrison, 55 F.3d 163, 166 (5th Cir.1995) (quoting United States v. Browner, 889 F.2d 549, 551 (5th Cir.1989)).

A defendant is entitled to a lesser-included-offense instruction if (1) the elements of the lesser offense are a subset of the elements of the charged offense and (2) the evidence at trial is such that a jury could rationally find the defendant guilty of the lesser offense yet acquit him of the greater. Id. (quoting Browner, 889 F.2d at 550-51). "While 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 [the] defendant to invoke the mercy-dispensing prerogative of the jury.'" United States v. Collins, 690 F.2d 431, 438 (5th Cir.1982) (quoting United States v. Sinclair, 444 F.2d 888, 890 (D.C.Cir.1971)).

A lesser-included-offense instruction "is not proper where, on the evidence presented, the factual issues to be resolved by the jury are the same as to both the lesser and greater offenses." Sansone v. United States, 380 U.S. 343, 349, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965). It is only proper where the additional element required for the greater offense is actually in dispute. Id. Otherwise, the jury would effectively be permitted "to determine the punishment to be imposed, a duty Congress has traditionally left to the judge." Id. at 350 n. 6, 85 S.Ct. 1004.

B. Standard of Review

We review the district court's determination on the first prong of the above two-part test (whether the lesser offense is included in the greater offense) de novo. See Harrison, 55 F.3d at 167. We review the court's determination on the second prong (whether a jury could rationally acquit on the greater offense yet convict on the lesser) for abuse of discretion. See id.

C. Analysis

Finley asserts that the first prong is satisfied...