Lead Opinion
Affirmed by published opinion. Judge LUTTIG wrote the majority opinion, in which Judge TILLEY joined. Judge MURNAGHAN wrote a dissenting opinion.
OPINION
Appellant Wright challenges his conviction and sentence for possession of crack cocaine with intent to distribute. We affirm.
On December 2, 1995, after midnight, three police officers were patrolling a known drug area in Spartanburg, South Carolina. See J.A. at 7, 18. During their patrol, the officers drove to a location where they could maintain surveillance of the area behind Sullivan’s Lounge. The area behind Sullivan’s Lounge was a local “hot spot” for illegal drug activity where the officers had arrested “hundreds” of individuals for violating drug laws on prior occasions. See J.A. at 20, 37. Seeing no one, the officers pulled around to Union Street which fronts the lounge. Looking down an alley that runs between Sullivan’s Lounge and another building, the officers saw defendant, Eli Wright, whom the officers knew. See J.A. at 22. Wright was standing in the alley, facing the wall. See J.A. at 9, 51. The officers called out Wright’s name, and when Wright saw the officers, he ran around to the back of the building. See J.A. at 51. As shortly before, there were no other people behind the building. See J.A. at 18. During the ensuing-chase, the officers observed Wright place a plastic bag on a brick wall with his hand. See id. Wright eventually fled into a pool hall where he was arrested.
The plastic bag that Wright placed on the brick wall containеd 3.25 grams of crack cocaine, an amount which had a street value of $300 to $600 and from which at least thirty dosage units or “rocks” could be cut. See J.A. at 13. When Wright was arrested, he was in possession of a razor blade, which field-tested positive for cocaine residue. See J.A. at 35,47. As the police officers testified, in their experience such razor blades are often used in the crack cocaine business to cut cocaine into rocks for distribution. See J.A. at 13. Wright was also found in possession of exactly $135 cash — four twenty-dollar bills and eleven five-dollar bills. See J.A. at 67. According to the testimony at trial, crack cocaine is commonly sold in $10 and $20 rocks. See J.A. at 13. Wright was nоt in possession of either a crack pipe or scales when he was arrested. See J.A. at 68.
At Wright’s trial for possession with intent to distribute, the government presented the evidence summarized. Wright presented no evidence in his defense. Wright did, however, request that the jury be instructed on simple possession. The court denied this request, and Wright was ultimately convicted of possession with intent to distribute. Wright now appeals, claiming that the district court abused its discretion by failing to instruct the jury on the lesser-included offense of simple possession, and that insufficient evidence supports his conviction for possession with intent to distribute.
II.
A defendant is not entitled to a lesser-included offense instruction as a matter of course. See United States v. Walker,
A.
In this case, the distinguishing element of the lessеr-included offense, Wright’s intent in possessing the cocaine, was not sufficiently placed in dispute to require a lesser-included offense instruction because neither of these conditions was met. The defense presented no evidence from which a reasonable jury could find that Wright’s intent was to possess the cocaine for personal use, rather than for distribution. There was no direct testimony regarding Wright’s intent in possessing the crack cocaine and an intent simply to possess for personal use was not fairly inferable from the evidence presented. Neither Wright nor any other person testified at trial that Wright was a drug user or that he possessed the crack cocaine for any purpose other than distribution. In
B.
Nor, as the district court concluded, could a jury fairly infer from the evidence presented that Wright intended to possess the crack cocaine for his personal use. The jury heard evidence that Wright was found in possession of thе cocaine outdoors, in December, after midnight, in an area where drug dealing is common. It heard evidence that he possessed a razor blade, which is a tool commonly used in the facilitation of drug transactions, and that the razor blade was coated with cocaine residue, consistent with its use as such a tool. And the jury heard testimony that Wright was found in possession of a large quantity of cash, in denominations consistent with the selling of crack cocaine at its local street price of $10 and $20 per rock. From none of this evidence could a jury fairly infer that Wright possessed his crack for personal use only. And, there was no othеr evidence from which a reasonable inference of simple possession would be permissible.
While there was testimony that people often used drugs in the area behind Sullivan’s Lounge, Wright was not originally seen behind the lounge, but rather was standing in— not just passing through — the alley next to the lounge. The officers, over time, had not observed anyone using drugs in that alley. See J.A. at 38. Moreover, the fact that Wright did not have any scales with him is consistent with street level dealing because rocks are sold on the street by size and not weight. And, perhaps most revealing, despite the fact that crack must be vaporized to be ingested, Wright was not in possession of a сrack pipe or any other means for smoking the large quantity of crack cocaine found on his person. There was not even evidence adduced that Wright personally used drugs on other occasions.
The only evidence that could even possibly support an inference (reasonable or otherwise) of an intent simply to possess the cocaine is the amount of the cocaine itself. But against the backdrop of the powerful evidence of distribution described, the fact that Wright was found in possession of 3.25 grams of crack cocaine (itself a large amount), as opposed to more of the drug, is simply insufficiеnt alone to require the lesser-included offense instruction requested.
In an effort to escape this seemingly inescapable conclusion, Wright argues that a simple possession instruction must be given in every drug distribution case, unless the quantity of drugs involved is so large as to completely rule out the possibility of personal use. Wright’s only support for this argument is the following passage which appears in our opinion in United States v. Baker,
We have previously held that a lesser-included possession instruction in drug distribution cases such as this one is required if requested unless, as a matter of law, the evidence would “rule out the possibility of simple possession, [because the quantity оf drugs found was] so huge as to require that the case proceed on the theory that the quantity conclusively has demonstrated an intent to distribute.” United States v. Levy,703 F.2d 791 , 793 n. 7 (4th Cir.1983).
Baker,
We acknowledge that this passage can be read as Wright urges. However, we believe the passage is most appropriately read as merely reciting the rule of Levy that “in drug distribution eases such as [Baker and Levy],” see id., that is, in eases in which there is substantial affirmative evidence of a defendant’s personal drug use, the defendant is entitled to a lesser-included possession instruction unless the amount of drugs the defendant possessed was large enough to preclude a reasonable inference of personal use. To the extent that the passage was intended to state a more general rule that a defendant is always entitled to a lesser-included possession instruction unless the quantity of drugs involved is so large as to
In this ease, the evidence, as a matter of law, does not “rule out a possible inference of’ conspiracy to possess. Levy,703 F.2d at 794 n. 7. It is clear that Baker was an addict. Roy testified that Baker’s family kept trying to keep Baker away from Roy, presumably to stop him from consuming cocaine, and Baker’s wife eventually had to commit him to the hospital because of his addiction. Baker’s defense at trial was that he was an abuser, not a distributor, of cocaine. According to Roy, Baker bought one to three ounces of cocaine a week, which is a large amount but which could be consistent with personal consumption. According to Roy and the evidence adduced at trial, Baker was well off financially, and nowhere did the government show that he paid for his drugs with proceeds from drug sales.
Baker,
Indeed, if the court in Baker did understand Levy to state the considerably more expansive rule for which Wright argues, it is evident that that court simply misread Levy. In Baker, we said the following with respect to our decision in Levy:
We have previously held that a lesser-included possession instruction in drug distribution cases such as this one is required if requested unless, as a matter of law, the evidence would “rule out the possibility of simple possession, [because the quantity of drugs found was] so huge as to require that the case proceed on the theory that the quantity conclusively has demonstrated an intent to distribute.” United States v. Levy,703 F.2d 791 , 793 n. 7 (4th Cir.1983). In Levy, we held that the district court committed reversible error by refusing to charge the jury on the lesser-included offense of simple possession of 4.75 ounces of 95% pure cocaine in addition to the greater offense of possession with intent to distrib-utee, and] [w]e reasoned that:
[T]here was a substantial basis for an inference that the defendant might have possessed the cocaine only for his own consumption and not preliminary to sale or other distribution.... [Because the] question of whether the defendant had the purpose to distribute was capable of two answers, the lesser included offense instruction was apрropriate.
Baker,
[T]here was substantial basis for an inference that the defendant might have possessed the cocaine only for his own consumption and not preliminary tо sale or*1115 other distribution. At his place of abode, among paraphernalia suited to chemical conversion, were also located four pipes customarily employed for purposes of consuming the cocaine. The value and number of potential doses (1300) of the 4.75 ounces of cocaine, while substantial, reflect the costly nature of the habit, but do not necessarily so exceed the quantity one might stockpile for personal use over a relatively long period of time as to eliminate all reasonable possibility that the jury might draw [an inference of simple possession].
Levy,
In Levy, we did distinguish our holding in United States v. Seni,
That amount of marijuana [15 tons] is sufficient to establish intent to distribute. The jury reasonably could not find the defendants guilty of possession without also finding them guilty, in view of the large quantity of marijuana, of possession with intent to distribute.
Seni,
Obviously, there is a difference between a holding, such as in Seni that the drug quantity may be so great as to require that the сase proceed exclusively on a distribution theory, and a holding, such as that which the court in Baker arguably ascribed mistakenly to the court in Levy, that a simple possession instruction is required in every case in which an intent merely to possess cannot be ruled out based upon the drug quantity alone.
C.
It is apparent that Wright cannot avail himself successfully of the actual holdings of either Baker or Levy. Although in both cases we concluded that the lower court had abused its discretion by not instructing the jury on the lesser-ineluded offense of simple possession, our holdings rested, as we explain above, principally on the considerable affir
Accordingly, the district court did not abuse its discretion by denying Wright’s requested instruction on simple possession. Based upon the evidence recited, it is likewise clear that Wright’s second claim, that his conviction must be reversed because there was insufficient evidence for the jury to find that he possessed his crack cocaine with the intent to distribute it, is meritless.
III.
For the foregoing reasons, Wright’s conviction for possession with intent to distribute is affirmed.
AFFIRMED
Dissenting Opinion
dissenting:
A defendant is entitled to a jury instruction on a lesser-included offense if the “conclusion as to the lesser offеnse fairly may be inferred from the evidence presented.” United States v. Baker,
I.
The decision to give or not to give a jury instruction is reviewed for abuse of discretion. United States v. Burgos,
An instruction for the lesser offense is proper even absent conflicting testimony regarding possession or distribution. The court must issue the lesser-included offense instruction if the “conclusion as to the lesser offense fairly may be inferred from the evidence presented.” United States v. Baker,
The majority concedes that the Defendant would be entitled to a lesser-included offense instruction if the conclusion as to the lesser offense is fairly inferable from the evidence presented; however, the majority finds that no such inference is possible under the facts in the instant case. Maj. Opn. at 1112. It reaches such a conclusion by distinguishing our precedent and by ignoring essential facts in the present ease.
The majority first argues that there is no evidence, absent the quantity of drugs, to support the lesser-included offense of simple possession. However, contrary to the major
All of the facts cited by the majority which lend support for the possession with intent to distribute charge, also support the lesser charge of simple possession. The majority argues that the Defendant was found in possession of crack outdoors, at midnight, and in an area where drug dealing is common. However, the majority ignores the fact that the police testified that drug use was also possible in the area in question. In addition, there is evidence of drug paraphernalia behind the building where the Defendant was arrested, further raising the possible inference of personal use.
Next, the majority stresses that the Defendant possessed a razor blade with cocaine residue at the time of his arrest, and that razor blades are often used in the drug trade. However, the Defendant would need the razor blade to cut the crack cocaine if he were going to sell it or use it. Thus, the razor blade raises the inference of both personal use and distribution.
Finally, the majority relies on the fact that the Defendant was found with “a large quantity of cash, in denominations consistent with the selling of crack cocaine.” The Defendant was found with $135 dollars in cash, an amount not so large as to require a finding of distribution. See Levy,
Moreover, the majority fails to acknowledge several additional important facts in the instant ease which also support an inference of simple possession. First, the Defendant possessed 3.25 grams of crack cocaine, or .approximately l/10th of an ounce. One tenth of an ounce is a small quantity of drugs and is not so high as to preclude the possible inference of personal use. In addition to the fact that the quantity of drugs in question is small is the fact that the crack wаs not packaged in individual units for sale, and no such packages were found on the Defendant’s person. Furthermore, there was no evidence presented regarding the availability of a scale or similar tool in the vicinity which would be available for use by the Defendant. Thus, the Defendant had no method at his disposal to divide, weigh, and sell the crack cocaine in smaller units. It was neither packaged in such units nor did the Defendant have any method for packaging it in such units.
Obviously the mere absence of crack in smaller units and the absence of a method of weighing the crack for distribution, do not prohibit a finding of distribution; however, they do provide evidence from which a jury could infer that the crack cocaine was for the Defendant’s personal use and not for sale.
The Defendant was caught in possession of a 3.25 gram rock, or l/10th of an ounce, of crack cocaine in an area known for drug use and distribution. The Defendant possessed a razor blade and $135 in cash. The cocaine was not packaged in units for sale and the Defendant had no access to a scale or other device with which to weigh the crack for sale. While I believe there was sufficient evidence from which a jury could infer that the Defendant intended to sell the drugs, I also believe that the evidence in the record supports an inference of mere possession. Since “any evidence, however weak, bearing upon the lesser included offense will suffice to create an entitlement to a lesser included offense instruction,” Baker,
However, even assuming that the majority is correct and that the only evidence supporting simple possession is the quantity of crack cocaine, I believe the Defendant is still entitled to a jury instruction on the lesser-included offense. The majority goes to great lengths to distinguish two cases of the Court which hold that absent an extremely large quantity of drugs which would preclude the possibility of possession, the jury could infer possession simply by the quantity of the drugs. In my view, Baker and Levy control and the district court was required to issue the lesser-included jury instruction.
The majority distinguished Baker and Levy on the ground that in both Baker and Levy there was additional evidence as to personal use. However, Baker and Levy are not so easily distinguishable. Both Baker and Levy rely on the test set out above that the defendant was entitled to a lesser-included jury instruction if a “conclusion as to the lesser offense fairly may be inferred from the evidence presented.” Baker,
Seni Levy, and Baker were all decided under the premise that a person caught with drugs is entitled to a jury charge regarding possession since being caught with drugs raises the inference that you possess them with the intent to use them. Thus, absent other evidence, the jury can infer simple possession merely from the possession of drugs. In Seni, we held that any possible inference of possession was eliminated due to the large quantity of drugs, in Levy, we held that the quantity was not so large as to preclude use, and in Baker, we held that “unless, as a matter of law, the evidence would ‘rule out the possibility of a finding of simple possession, [because the quantity of drugs found was] so huge as to require that the case proceed on the theory that the quantity conclusively has demonstrated an intent to distribute’ ” a defendant was entitled to a lesser-included offense instruction. Baker,
Thus, under our precedent, a defendant is entitled to a lesser included offense instruction when he is caught in possession of drugs unless there is convincing evidence which rebuts the possible inference that the defendant possessed the drugs for his personal use. Baker,
Such a conclusion is strengthened by the court’s favorable cite in Baker to United States v. Gibbs,
What is clear from Seni, Levy, and Baker is that the inference of possession exists absent compelling evidence which makes such an inference impossible. We have held that unless the quantity of drugs was extreme,
III.
What is particularly striking about the failure to instruct on simple possession in the instant ease, is the relatively small amount of drugs in the Defendant’s possession and the clear possibility regarding the inference of use. We, and other circuits, have often required the lesser-included offense instruction regarding simple possession when the quantity of cocaine was far larger than in the instant case, and when the inference of simple possession was far weaker.
In Levy, we required an instruction when the defendant possessed 4.75 ounces of pure cocaine. Levy,
The Defendant in the instant case possessed 3.25 grams of cocaine or approximately l/10th of an ounce, a far smaller amount than in Levy, Luden, Gibbs, Boissoneault, Blake, or Latham. The crack was not divided into smaller units and no tools were available to weigh the cocaine so that it could be divided into smaller units. Following our precedent and that of the other circuits, the Defendant was entitled to an instruction regarding simple possession.
The majority rejects the notion that quantity alone is sufficient to support the inference of possession. However, the Supreme Court in Turner v. United States,
Since I believe the district court erred in not providing an instruction to the jury on the lesser-included offense, I dissent.
Notes
. The majority notes that "Neither [the Defendant] nor any other person testified at trial that [the Defendant] possessed the crack cocaine for any purpose other than distribution.” Thus, the majority implies that there was direct testimony regarding distribution. Just as there was no direct testimony regarding possession, there was also no direct testimony regarding distribution.
. It should be noted that the defendant in the instant case possessed a quantity of drugs far below that in Levy or Baker.
. Taking the majority's argument to its logical conclusion, a person in possession of one dose of crack would not be entitled to an instruction regarding simple possession absent any other evidence regarding use. However, the posses