USA. v. Hill, 99-1158

• Decision Date: 12 November 1999
• Docket Number: No. 99-1158,99-1158
• Citation: 196 F.3d 806
• Parties: (7th Cir. 1999) United States of America, Plaintiff-Appellee, v. Damien Hill, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 806

196 F.3d 806 (7th Cir. 1999)

United States of America, Plaintiff-Appellee, v. Damien Hill, Defendant-Appellant.

No. 99-1158

United States Court of Appeals, Seventh Circuit

Argued October 5, 1999

Decided November 12, 1999

Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 98 CR 40--Rudy Lozano, Judge.

Before Posner, Chief Judge, and Eschbach and Evans, Circuit Judges.

Posner, Chief Judge.

The sole issue presented by this appeal is whether the defendant, convicted of possession with intent to distribute of crack cocaine, 21 U.S.C. sec. 841(a)(1), was entitled to an instruction that would have permitted the jury to convict him instead of the less grave offense of simple possession. 21 U.S.C. sec. 844(a). A defendant is entitled to an instruction on a "lesser included" offense only if there is enough evidence to permit a rational jury to conclude that he was guilty of it, Schmuck v. United States, 489 U.S. 705, 716 n. 8 (1989); United States v. Chrismon, 965 F.2d 1465, 1476-77 (7th Cir. 1992), and there wasn't here. (And likewise the government if it requests such an instruction, as it will sometimes do out of concern that a jury forced to decide between acquittal and conviction of a very serious offense may opt for acquittal.) Although the quantity of crack seized when the defendant was arrested, 20 grams, was not so large as to compel an inference that he was a dealer, there was much other evidence of that, including the way the crack was packaged (it was in 73 separate bags and there were a number of empty bags as well), and the large amount of cash that Hill had in his possession when he was arrested, even though he had been lawfully employed for only a week. There was no evidence that he uses the stuff himself; rather than arguing that he is a user and that the 20 grams were intended to be consumed entirely by him, he denied possessing the crack at all. No rational jury could have found him guilty of simple possession on this record. If it believed him, it had to acquit him of any drug offense; if it disbelieved him, it had to convict him of possession with intent to distribute.

All this is obvious and we write only to clarify three recurrent issues in cases involving the question whether to give a lesser-included instruction. The first is the standard of appellate review of a refusal to give such an instruction. We do not have a published decision on the question, but the circuits that do have hold that review is for abuse of discretion. E.g., United States v. Monger, 185 F.3d 574 576 (6th Cir. 1999); United States v. Duran, 127 F.3d 911, 914 (10th Cir. 1997); United States v. Harrison, 55 F.3d 163, 167 (5th Cir. 1995). We don't put much stock in the precise verbal formulations of standards of appellate review. Basically there is deferential review and nondeferential (plenary) review, and whether deferential review is denominated for "abuse of discretion" or "clear error" or "substantial evidence" or any of the other variants (with the exception of "mere scintilla of evidence") that courts use makes little practical difference. United States v. Boyd, 55 F.3d 239, 242 (7th Cir. 1995); Johnson v. Trigg, 28 F.3d 639, 643-44 (7th Cir. 1994); Morales v. Yeutter, 952 F.2d 954, 957 (7th Cir. 1991). The case for deferential review is strongest when the trial court or other first- line decision-maker has an advantage in determining the facts and when, because decision depends on the particular facts of the particular case, uniform treatment is inessential to maintaining the clarity andconsistency of the legal rules themselves. Salve Regina College v. Russell, 499 U.S. 225, 233 (1991); Pierce v. Underwood, 487 U.S. 552, 561-62 (1988); Door Systems, Inc. v. Pro-Line Door Systems, Inc., 126 F.3d 1028, 1031 (7th Cir. 1997); United States v. Mills, 122 F.3d 346, 350 n. 5 (7th Cir. 1997). This is such a case. The trial judge is in a better position to determine whether there is enough evidence to permit a rational jury to find the defendant guilty of the lesser offense, and since the determination will vary with the facts of the case, uniformity of outcome across cases is neither necessary nor feasible. Cases involving the determination of some constitutional issues, such as Ornelas v. United States, 517 U.S. 690 (1996), including the quasi- constitutional issue of whether there was sufficient evidence to entitle the defendant to put a theory of defense before the jury, see, e.g., United States v. Meyers, 157 F.3d 1067, 1074 (7th Cir. 1998), have allowed broader review because of the weightier interests thought to be at stake when the Constitution is invoked, and thus those cases are distinguishable from the present one.

We next wish to reiterate this circuit's position that simple possession is indeed a lesser included offense of possession with intent to...