U.S. v. White, 95-2949

• Decision Date: 15 May 1996
• Docket Number: No. 95-2949,95-2949
• Citation: 81 F.3d 80
• Parties: UNITED STATES of America, Appellee, v. Johnny WHITE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 80

81 F.3d 80

UNITED STATES of America, Appellee, v. Johnny WHITE, Appellant.

No. 95-2949.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 9, 1996.

Decided April 4, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied May 15, 1996.

Appeal from the United States District Court for the Eastern District of Missouri; Charles A. Shaw, Judge.

JoAnn Trog, St. Louis, MO, for appellant.

Raymond Martin Meyer, Asst. U.S. Atty., St. Louis, MO (Richard L. Poehling, of counsel), for appellee.

Before RICHARD S. ARNOLD, Chief Judge, BOWMAN, Circuit Judge, and JONES, ^* District Judge.

BOWMAN, Circuit Judge.

Johnny White, an African-American, was tried by jury and found guilty on charges of possession of cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (1994); carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) (1994); and illegal possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (1994). At the close of the government's case and again at the close of all evidence, White moved for a judgment of acquittal on the ground that the evidence against him was insufficient as a matter of law to sustain a conviction under the charges. The District Court ¹ denied those motions. After the jury found White guilty as charged, the District Court sentenced him to an aggregate term of 147 months in prison followed by four years of supervised release. White timely appeals his convictions and sentence. We affirm.

I.

White raises challenges to the sufficiency of the evidence. In reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the government, resolving evidentiary conflicts in favor of the government, and accepting all reasonable inferences drawn from the evidence that support the jury's verdict. United States v. Bates, 77 F.3d 1101, 1104-05 (8th Cir. 1996). The jury's verdict must be upheld if there is an interpretation of the evidence that would allow a reasonable-minded jury to find the defendant guilty beyond a reasonable doubt. Id. at 1105.

White argues that the evidence is insufficient to convict him of possession of cocaine base with intent to distribute. We disagree.

First, there is more than sufficient evidence that White knowingly possessed the cocaine base. Following his arrest and advisement of his Miranda rights, White twice admitted being in knowing possession of the cocaine base in both an oral and a written statement to the police, saying that he had the cocaine base in his possession to deliver to a friend. Officers Dailey and McLin testified that they initially encountered White on a residential street in St. Louis while they were looking for an individual named Michael Cooper, for whom the officers had an arrest warrant. Because White fit the description of Cooper, the officers approached White and asked him if he was Cooper. Without responding, White looked in the direction of the officers, and then fled on foot. Officer McLin testified that during the ensuing pursuit, he observed White throw a clear plastic bag from his right hand. Subsequently, Officer McLin retrieved the bag and recognized its contents as cocaine base. Joseph Crow, a criminalist and expert on drug analysis with the St. Louis Police Department, identified the contents of the plastic bag as 25.81 grams of cocaine base. Considering this evidence, we find unpersuasive White's argument that the evidence is insufficient to prove that he possessed the cocaine base because the plastic bag was not tested for his fingerprints. See United States v. Haney, 23 F.3d 1413, 1416-17 (8th Cir.) (holding evidence sufficient to sustain defendant's conviction of possession of firearm without fingerprint evidence where witness testified that he saw gun in defendant's possession and saw defendant drop gun in precise location where gun was found), cert. denied, --- U.S. ----, 115 S.Ct. 253, 130 L.Ed.2d 174 (1994).

Second, as to intent to distribute, White admitted in both an oral and a written statement to the police that he had the cocaine base in his possession to transfer to another individual. In addition, evidence of intent to distribute may be inferred from possession of a distributable quantity of drugs, i.e., a quantity larger than that which a mere drug user ordinarily would possess for personal use. See United States v. Thompson, 925 F.2d 234, 237 (8th Cir.1991). Where there is additional evidence of plan or intent to distribute, possession of as little as five grams of cocaine has been held to be a distributable amount. See United States v. White, 969 F.2d 681, 684 (8th Cir.1992) (citing United States v. Ramirez, 608 F.2d 1261, 1264 (9th Cir.1979)). In the present case, Sergeant Gilmore testified that the amount of cocaine base that White possessed, 25.81 grams, has a street value in excess of $3,000, and that such a quantity is consistent with distribution. The presence of a firearm in White's possession, "generally considered a tool of the trade for drug dealers, is also evidence of intent to distribute." See United States v. Schubel, 912 F.2d 952, 956 (8th Cir.1990). Officer Dailey testified that while he was chasing White, he observed White reach into the rear waistband of his pants and discard a magazine clip for a pistol. During the pursuit, White discarded his jacket and continued to run until Officer Dailey was able to catch him. After White's arrest, Officer Dailey returned to the precise location where White discarded his jacket and found a gun underneath it. We conclude that the evidence, viewed in the light most favorable to the government, is sufficient to sustain the jury's verdict that White was guilty of possession of cocaine base with intent to distribute.

White also challenges the sufficiency of the evidence underlying his conviction for carrying a firearm during the commission of a drug trafficking crime. White argues there was insufficient evidence to establish that he was in possession of a firearm, asserting that he did not "use" the firearm within the meaning of 18 U.S.C. § 924(c)(1). See Bailey v. United States, --- U.S. ----, ----, 116 S.Ct. 501, 509, 133 L.Ed.2d 472 (1995). This argument, however, is beside the point, because White was convicted of "carrying," not "using," a firearm during and in relation to a drug trafficking offense. The Supreme Court in Bailey held that to sustain a conviction under the "use" prong of § 924(c)(1), the prosecution must show that the defendant actively employed the firearm during and in relation to the predicate crime. Id. at ----, 116 S.Ct. at 509. Here, by contrast, we are concerned solely with the issue of whether White was in fact "carrying" the firearm within the meaning of § 924(c)(1).

Under 18 U.S.C. § 924(c)(1) "[w]hoever, during and in relation to any ... drug trafficking crime, ... uses or carries a firearm" is subject to imprisonment for five years. It is clear that § 924(c)(1) specifies two alternative types of conduct with a firearm, "uses" or "carries," either one of which provides a basis for prosecution under the statute. As the Supreme Court in Bailey observed, "[t]he 'carry' prong of section 924(c)(1) ... brings some offenders who would not satisfy the 'use' prong within the reach of the statute." --- U.S. at ----, 116 S.Ct. at 509. The words of the statute are to be given their "ordinary" or "natural" meaning. See id. at ----, 116 S.Ct. at 506. Webster's Dictionary defines "carry" as "to move while supporting" or "to hold, wear, or have upon one's person." Webster's Third New International Dictionary 343 (3d ed. 1981). Black's Law Dictionary similarly defines "carry" as "[t]o have or bear upon or about one's person," and defines "carry arms or weapons" as "[t]o wear, bear, or carry them upon the person or in the clothing or in a pocket, for the purpose of use." Black's Law Dictionary 214 (6th ed. 1990). The Supreme Court in Bailey concluded that "a firearm can be carried without being used, e.g., when an offender keeps a gun hidden in his clothing throughout a drug transaction." Bailey, --- U.S. at ----, 116 S.Ct. at 507.

Thus, in order to sustain a conviction for "carrying" a firearm in violation of § 924(c)(1), the government must prove that White bore the firearm on or about his person during and in relation to a drug trafficking offense. We conclude there...