U.S. v. Harrison, 94-40695

• Decision Date: 31 May 1995
• Docket Number: No. 94-40695,94-40695
• Citation: 55 F.3d 163
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Wendell Wayne HARRISON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 163

55 F.3d 163

UNITED STATES of America, Plaintiff-Appellee, v. Wendell Wayne HARRISON, Defendant-Appellant.

No. 94-40695.

United States Court of Appeals, Fifth Circuit.

May 31, 1995.

Douglas M. Barlow (Court-appointed), Beaumont, TX, for appellant.

Paul E. Naman, Tracey M. Batson, Asst. U.S. Attys., Mike Bradford, Beaumont, TX, for appellee.

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

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. Sec. 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. Sec. 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. Sec. 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 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, 130 L.Ed.2d 163, 176, 314 (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, 121 L.Ed.2d 250 (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 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 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 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, 85 S.Ct. 1004, 1009, 13 L.Ed.2d 882 (1965). "[T]wo independent prerequisites" must be met before a 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, 130 L.Ed.2d 435 (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, 108 S.Ct. 2022, 100 L.Ed.2d 609 (1988). ⁵ For the two-part test, quoted supra, for when a...