U.S. v. Martinez

Decision Date04 January 1995
Docket NumberD,No. 164,164
PartiesUNITED STATES of America, Appellee, v. Ramon MARTINEZ, Defendant-Appellant. ocket 94-1082.
CourtU.S. Court of Appeals — Second Circuit

Walker, Circuit Judge, filed a dissenting opinion.

Mark B. Gombiner, New York City (Legal Aid Soc., New York City, on the brief), for defendant-appellant.

James A. Goldston, Asst. U.S. Atty., New York City (Mary Jo White, U.S. Atty., David B. Fein, Asst. U.S. Atty., New York City, on the brief), for appellee.

Before: NEWMAN, Chief Judge, WALKER and CALABRESI, Circuit Judges.

JON O. NEWMAN, Chief Judge:

This appeal presents a close question concerning the sufficiency of the evidence in a narcotics distribution case. The precise issue is whether a defendant, clearly guilty of drug possession, has been properly convicted of possession with intent to distribute where the evidence showed that he possessed 3 1/2 grams of cocaine and the only evidence of his intent to distribute this small quantity consisted of one-half ounce of a cutting agent, a small hand-held scale, and a gun. Ramon Martinez appeals from a judgment of the United States District Court for the Southern District of New York (Leonard B. Sand, Judge) convicting him, after a jury trial, of one count of possession of cocaine with intent to distribute, 21 U.S.C. Sec. 841(a)(1), one count of using and carrying a firearm in relation to a drug trafficking crime, 18 U.S.C. Sec. 924(c), and one count of possession of a firearm by a felon, 18 U.S.C. Sec. 922(g). For the reasons stated below, we conclude that the evidence of intent to distribute is insufficient, and we therefore vacate the convictions under 18 U.S.C. Secs. 841(a)(1) and 924(c) and remand to the District Court for entry of a judgment of conviction for simple possession of cocaine, in violation of 21 U.S.C. Sec. 844, and for resentencing.

Background

Taken in the light most favorable to the Government, the evidence permitted the jury to find the following facts. In late March 1993, a confidential informant told the police that a man named "Juan" was dealing drugs out of Apartment 4E at 134 Elliott Place in the Bronx. Based on the informant's tip, officers of a joint federal-state task force obtained a "no knock" search warrant for Apartment 4E. On March 25, 1993, in preparation for executing the search warrant, Detective Gerard Gardiner and other law enforcement officers entered the building and set up a hydraulic ram in front of the door to the apartment. As the officers began breaking down the door, they heard a man inside, later identified as Jose Garcia, yell "policia" (Spanish for police) and saw a man, later identified as appellant Martinez, holding a gun.

Once inside the apartment, the officers observed only Garcia and Martinez. Garcia was standing in the kitchen. Martinez began running to the back of the apartment, carrying the gun in his hand. Detective Gardiner pursued Martinez to the rear bedroom, where he witnessed Martinez throw the pistol out the window. Martinez then reached toward the groin area of his pants as if to remove something. The detective apprehended Martinez and seized from his person a black leather pouch containing five bags of white powder. One bag turned out to contain an eighth of an ounce (about 3 1/2 grams) of cocaine, while the other four contained a total of one-half ounce of "cut," a non-narcotic powder commonly used to dilute cocaine. A further search of Martinez revealed a small hand-held scale capable of weighing amounts up to one gram.

Following Martinez's apprehension, Detective Gardiner searched Garcia, but found no contraband on Garcia's person. Gardiner acknowledged, however, that "to a very specific degree" Garcia matched the description of the dealer "Juan" given by the informant. Gardiner also learned at some point that "Juan" might be an alias for Jose Garcia. After taking Garcia into custody, 1 Gardiner and the other officers searched the apartment and found another eighth of an ounce of cocaine, a grinder, an electronic scale that could measure 100-gram quantities, a sifter used to mix cocaine with "cut," and tin foil. These items were in plain view on the living room table. In addition, the police discovered $1,078 in cash secreted inside the frame of a closet door.

At trial, Gardiner, testifying as an expert on narcotics trafficking, opined that the hand-held scale found on Martinez could be used to weigh small quantities of narcotics, like half-gram and gram amounts of cocaine, and that cocaine is commonly sold in half-gram and gram quantities at the retail level. He further explained that "cut" is usually mixed with cocaine "for the purpose of increasing the drug dealer's profits as well as making cocaine ingestible without poisoning the person who is ingesting it." On cross-examination, Gardiner admitted that the 3 1/2 grams of drugs seized from Martinez were consistent with the quantities used by a cocaine addict. Other trial evidence also suggested that Martinez was a drug addict. In particular, the Government introduced evidence of a prior conviction, the sentence for which included a requirement that Martinez submit to urinalysis and drug counseling.

After the jury convicted Martinez on all three counts of the indictment, the District Court sentenced him to a total of 78 months in prison: concurrent 18-month terms for drug-trafficking and possession of a firearm by a felon, and a consecutive 60-month term for the section 924(c) firearms offense.

Discussion

On appeal, Martinez contends that the evidence was insufficient to prove his intent to distribute cocaine. He argues that a finding of such intent may not be based on the 3 1/2 grams of cocaine and the items in his possession, and that the additional 3 1/2 grams of cocaine and the other items found on the table may not be attributed to him simply because he was on the premises. Applying the traditional test of whether " 'the record evidence could reasonably support a finding of guilt beyond a reasonable doubt,' " United States v. Jones, 30 F.3d 276, 281 (2d Cir.1994) (quoting Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2788, 61 L.Ed.2d 560 (1979)), we conclude that the evidence in this case was insufficient to prove intent to distribute.

The essential elements of possession of narcotics with intent to distribute are that a defendant knowingly possessed a quantity of drugs and that he did so with the specific intent to distribute them. See, e.g., United States v. Latham, 874 F.2d 852, 863 (1st Cir.1989); United States v. Clark, 475 F.2d 240, 248-49 & n. 10 (2d Cir.1973). The element of possession may be satisfied by either actual or constructive possession of the narcotics, see United States v. Gordils, 982 F.2d 64, 71 (2d Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1953, 123 L.Ed.2d 657 (1993); United States v. Nusraty, 867 F.2d 759, 766 (2d Cir.1989), and both possession and intent may be established by direct or circumstantial evidence, see United States v. Sureff, 15 F.3d 225, 228 (2d Cir.1994); United States v. Castro, 813 F.2d 571, 578 (2d Cir.), cert. denied, 484 U.S. 844, 108 S.Ct. 137, 98 L.Ed.2d 94 (1987).

1. The items in Martinez's actual possession. We consider initially the items in Martinez's actual possession--the 3 1/2 grams of cocaine, the one-half ounce of "cut," the one-gram scale, and the pistol. Our cases hold that in a prosecution under 21 U.S.C. Sec. 841, the quantity of drugs involved is not an element of the crime. See United States v. Monk, 15 F.3d 25, 27 (2d Cir.1994). Thus, no minimum quantity has been established as a necessary part of the proof to sustain a conviction for possession of drugs with intent to distribute. Possession of a small quantity, with substantial evidence of intent to sell, would suffice. On the other hand, it is clear that a small amount of narcotics, standing alone, is insufficient evidence of an intent to distribute. In Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970), all nine Justices agreed that possession of 14.68 grams (four times the quantity found on appellant) of a cocaine and sugar mixture was an insufficient basis for concluding that the defendant was distributing cocaine. Id. at 423, 90 S.Ct. at 655; id. at 424, 90 S.Ct. at 656 (Marshall, J. concurring in the judgment); id. at 425, 90 S.Ct. at 656 (Black, J., with whom Douglas, J., joins, dissenting in part). We have also ruled that possession of small quantities of cocaine is insufficient to prove intent to distribute. United States v. Boissoneault, 926 F.2d 230, 234 (2d Cir.1991) (5.31 grams (.19 ounce) of cocaine and a few other items); United States v. Gaviria, 740 F.2d 174, 184 (2d Cir.1984) (seven grams (twice the quantity found on appellant) of cocaine); see United States v. Garcia-Duarte, 718 F.2d 42, 47 (2d Cir.1983) (suggesting that .23 grams of cocaine was enough to support possession without intent to distribute); see also United States v. White, 969 F.2d 681, 684 (8th Cir.1992); United States v. Garrett, 903 F.2d 1105, 1113 (7th Cir.), cert. denied, 498 U.S. 905, 111 S.Ct. 272, 112 L.Ed.2d 227 (1990); Latham, 874 F.2d at 863 (inference of intent to distribute not warranted from possession of one ounce of cocaine (eight times the quantity found on appellant)).

Although we have suggested that as little as four or five grams of narcotics might be a distributable amount under particular circumstances, see United States v. Peterson, 768 F.2d 64, 66 n. 1 (2d Cir.) (citing United States v. Ramirez, 608 F.2d 1261, 1264 (9th Cir.1979)), cert. denied, 474 U.S. 923, 106 S.Ct. 257, 88 L.Ed.2d 264 (1985); see also United States v. Bautista, 23 F.3d 726, 729, 734 (2d Cir.) (affirming conviction for possession with intent to distribute .477 grams of cocaine, although sufficiency of evidence was not challenged on appeal), cert. denied, --- U.S. ----, 115 S.Ct. 174, 130 L.Ed.2d 110 (1994), where the...

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