U.S. v. Hunt

• Decision Date: 17 November 1997
• Docket Number: No. 96-50639,96-50639
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Latarsha HUNT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 739

129 F.3d 739

UNITED STATES of America, Plaintiff-Appellee, v. Latarsha HUNT, Defendant-Appellant.

No. 96-50639.

United States Court of Appeals, Fifth Circuit.

Nov. 17, 1997.

Richard L. Durbin, Jr., Asst. U.S. Atty., Priscilla Garcia, San Antonio, TX, for Plaintiff-Appellee.

Patrick B. Montgomery, San Antonio, TX, for Defendant-Appellant.

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

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-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 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 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 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

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 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.

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