Case Information
*1 Before CARSON , BALDOCK , and EBEL , Circuit Judges.
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BALDOCK , Circuit Judge.
_________________________________
On Mаrch 23, 2018, Defendant Nowlin Lee Waugh, Jr. was driving on Interstate 40 in Eastern Oklahoma when Oklahoma Highway Patrol Trooper Aaron Lockney observed his vehicle cross over the fog line. Believing the driver was fatigued, texting, *2 or under the influence of drugs or alcohol, Trooper Lockney initiated a traffic stop. Trooper Lockney activated his emergency lights, but Defendant refused to yield and continued eastbound on Interstate 40. Trooper Lockney observed Defendant moving erraticаlly and reaching into the backseat area of the vehicle. Trooper Lockney also observed Defendant throwing items out of the driver’s side window.
After following Defendant for approximately 10 miles, Trooper Lockney performеd a “tactical vehicle intervention,” ramming Defendant’s vehicle and bringing it to a stop. Trooper Lockney identified Defendant as the driver and sole occupant of the vehicle. Inside the vehicle, Trooper Lockney and other officers found two trashcans, four gallon-size bottles of bleach, shards of suspected methamphetamine strewn about the vehicle, six kilo-sized vacuum-sealed bags that had been ripped open, two or three gallon-sized Ziploc bаgs, and some shrink wrap. The interior of the vehicle was wet in places and smelled strongly of bleach. One of the trash cans contained bleach and shards of suspected methamphetamine. The troopers believed Defendant used thе bleach to destroy large quantities of methamphetamine during the ten-mile police chase. The troopers recovered the largest shards of suspected methamphetamine for testing. The suspected methamphetamine wаs subsequently weighed at 54.19 grams of methamphetamine with a 93% purity rate.
Thereafter, Defendant was charged with possession with intent to distribute 50 or more grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). Defendant proceeded to trial and arguеd that, although he possessed methamphetamine, he did not intend to distribute it. Defendant introduced no evidence *3 he was a user of methamphetamine but, during opening and closing statements, defense counsel argued the Government could not рrove Defendant possessed the requisite intent to distribute. In furtherance of this defense, Defendant asked the district court to instruct the jury on the lesser included offense of simple possession. The district court denied Defendant’s request, and the jury returned a guilty verdict. Defendant appeals, arguing the district court erred in refusing to give the lesser included instruction on mere possession. Exercising jurisdiction under 28 U.S.C. §.1291, we affirm.
***
A defendant is entitled to an instruction on a lesser included offense if the
evidence wоuld permit a rational jury to convict the defendant of the lesser offense and
acquit him of the greater.
United States v. Pacheco
,
In this case, the parties agree the first three requirements are met. Therefore, at issue is whether the jury would have bеen able to rationally acquit Defendant of possession with intent to distribute and instead convict him on simple possession. The district court found there was no evidence of personal use and substantial evidence of distribution. Accordingly, the district court held an instruction on the lesser included offense of simple possession was not warranted.
We review the district court’s decision for an abuse of discretion. An abuse
of discretion is defined as “judicial action which is arbitrary, capricious, or whimsical”
or judicial action based upon “manifestly unreasonable judgment, prejudice, bias, or
ill will which is ascertainable from the record.”
Id.
(quoting
Pelican Prod. Corp. v.
Marino
,
* * *
Upon review, we conclude the district court did not abuse its discretion in declining to give an instructiоn on simple possession. Based on the quality and quantity of the methamphetamine recovered, as well as the circumstances surrounding the recovery of the methamphetamine, no rational jury could find the methamphetamine was intended for personal use rather than distribution.
First, when highway patrol forced Defendant’s vehicle to a stop, troopers
recovered 54 grams of methamphetamine from the vehicle. Special Agent Sean Henry
*5
testified a personal usе quantity is approximately a quarter gram.
[1]
Therefore, Agent
Henry calculated Defendant had at least 200 single dose units of methamphetamine.
Agent Henry further testified, in his twenty-year career, he has never encountered an
addict who pоssessed this much methamphetamine for personal use. In fact, Agent
Henry testified a personal use quantity of methamphetamine would not exceed 10
grams—less than 1/5 of the amount recovered in this case. There was absolutely no
evidenсe presented that 54 grams of methamphetamine could amount to a personal use
quantity.
See United States v. Powell
,
Then, the DEA’s forensic chemist testified the methamphetamine recovered was
93% pure. Based on this purity level, Agent Henry testified a distributor could mix
the methamphetamine with a “cutting agent”
to double
the amount of
methamphetamine available for distribution.
See United States v. Burns
,
*6 Furthermore, the circumstances surrounding the recovery of the methamphetamine support the district court’s determination that a simple possession instruction was not warranted. The evidence showed that on March 22, 2018, Defendant spent $521.22 to rent a car in Fort Smith, Arkansas. The same day, he traveled from Fort Smith to Oklahoma City, where he paid $187.88 in cash to stay at a motel. The very next day, Defendant was traveling back toward Fort Smith when the stop occurrеd and the methamphetamine was seized. It seems unlikely Defendant would travel six hours roundtrip, rent a motel, and spend over $700 to obtain methamphetamine for personal use. at 102 (finding that traveling from San Diego to Denver and renting a motel room tо purchase cocaine is indicative of possession with intent to distribute rather than mere possession).
Additionally, Agent Henry surmised Defendant devised a scheme to avoid detection and destroy the methamphetamine in the event he was caught. Specifically, Agent Henry testified Defendant used the four gallons of bleach to destroy at least an additional three pounds of methamphetamine during the ten-mile police pursuit. See United States v. Winder , 557 F.3d 1129, 1138 (10th Cir. 2009) (finding intentional flight is circumstantial evidence of guilt generаlly). Agent Henry testified this additional quantity of methamphetamine was packaged in six “heat-sealed” bags to avoid detection. These additional three pounds of methamphetamine equate to over 1,000 single dose units—a distribution quantity that Agent Henry tеstified would take Defendant “years” to use or that Defendant could sell for over $100,000.
All of these circumstances—including Defendant’s trip from Fort Smith to
Oklahoma City, Defendant’s intentional flight and premeditated plan to destroy
evidence, and the additiоnal methamphetamine Defendant likely possessed—suggest a
“sophisticated and expensive operation with larger designs than provision for
[Defendant’s] personal use.”
Burns
,
Finally, neither the Government nor Defendant presented any evidence
indicative of personal use. Law enforcement did not find any personal use
paraphernalia in Defendant’s vehicle, such as glass pipes, syringes, or tiny baggies.
Similarly, neither the Government nor Defendant presented any evidenсe that
Defendant was under the influence of methamphetamine at the time of the stop. Indeed
“[t]here is a surprising lack of evidence which tends to support simple possession.”
Fitzgerald v. United States
,
Nevertheless, Defendant argues our holding in United States v. Burns mandates reversal. In Burns , we held the district court abused its discretion in declining to give an instruction on mere possession when the evidence showed the defendants traveled from San Diego, Cаlifornia, to Denver, Colorado, with scales in their luggage, and purchased $13,000 worth of 100% pure cocaine. 624 F.2d at 102–05. We are not persuaded Burns controls the analysis here.
In
this case, while
law enforcement only collected 54 grams of
methamphetamine, the Government presented expert testimony that Defendant
*8
possessed and destroyed an additional $100,000 worth of methamphetamine during the
police pursuit—substantially more than the $13,000 worth of cocaine in
Burns
.
Moreover, in
Burns
the Government presented no expert testimоny that the amount and
purity of the cocaine seized was indicative of intent to distribute.
See
Additionally, there was no evidence in
Burns
that the defendants concocted an
elaborate scheme to destroy evidence if caught. This type of sophistication, as is
present here, is illustrative of an intent to distribute.
See United States v. Taylor
, 683
F.2d 18, 21 (1st Cir.),
cert. denied
* * *
Accоrdingly, for the reasons provided herein, the district court is affirmed. the amount of methamphetamine at issue was indisputably a distribution quantity. Moreover, the large quantity of methamphetamine seized was only one indication of Defendant’s intent to distribute. As рreviously stated, the quality of the methamphetamine recovered and the circumstances surrounding the recovery of the methamphetamine were also indicative of drug distribution. Thus, Trujillo is inapposite.
Notes
[1] Special Agent Henry is employed by the Drug Enforcement Administratiоn (“DEA”) and was qualified as an expert in the field of methamphetamine distribution.
[2] Defendant’s contention that our decision in
United States v. Trujillo
requires reversal
is similarly without merit. In
Trujillo
, we held the district court did not abuse its
discretion in deciding to
give
an instruction on the lesser included offense of mere
possession.