United States v. Eli Wright , 131 F.3d 1111 ( 1997 )

MURNAGHAN, Circuit Judge,

dissenting:

A defendant is entitled to a jury instruction on a lesser-included offense if the “conclusion as to the lesser offense fairly may be inferred from the evidence presented.” United States v. Baker, 985 F.2d 1248, 1259 (4th Cir.1993) (citing United States v. Medina, 755 F.2d 1269, 1273 (7th Cir.1985)). Since I believe that under the facts in the instant case, and under our circuit’s precedent, the Defendant was entitled to the lesser-included offense instruction, I dissent.

I.

The decision to give or not to give a jury instruction is reviewed for abuse of discretion. United States v. Burgos, 55 F.3d 938, 935 (4th Cir.1995). A defendant is entitled to an instruction on a lesser included offense “if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater.” Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1995, 36 L.Ed.2d 844 (1973); United States v. Levy, 703 F.2d 791, 793 (4th Cir.1983). The Court’s rationale for requiring the lesser-included offense is that “[wjhere one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction.” Keeble, 412 U.S. at 212-213, 93 S.Ct. at 1997-98.

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, 985 F.2d at 1259. Moreover, “any evidence, however weak, bearing upon the lesser included offense will suffice to create an entitlement to a lesser included offense instruction.” Id. at 1259; United States v. Walker, 75 F.3d 178, 181 n. * (4th Cir.), cert. denied, — U.S. -, 116 S.Ct. 2513, 135 L.Ed.2d 202 (1996). In Baker, we noted that “[t]he district court has no discretion to refuse to give a lesser-included instruction if the evidence warrants the instruction and the defendant requests it.” 985 F.2d at 1259.

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 majority’s contention, there is ample evidence from which a jury could infer that the Defendant was guilty only of possession and not distribution.

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, 703 F.2d at 792 ($1,150 not so great as to require a finding of distribution); see also United States v. Boissoneault, 926 F.2d 230, 234 (2nd Cir.1991) (“$1,460 in ten and twenty dollar bills, while consistent with street distribution, is also susceptible to countless inferences not involving illegal activity.”).

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 was 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, 985 F.2d at 1259, Walker, 75 F.3d at 181 n. *, and since “[t]he district court has no discretion to refuse to give a lesser-included instruction if the evidence warrants the instruction and the defendant requests it,” Baker, 985 F.2d at 1259, I believe the district court abused its discretion in not granting defendant’s request for the lesser-included offense instruction.¹

II.

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, 985 F.2d at 1259. Thus, the question for the court was, absent an extremely large quantity of drugs, was mere possession possible, i.e. could a jury infer simple possession? In United States v. Sen% we held that a defendant was not entitled to a lesser-included offense instruction because the quantity of drugs was so large as to preclude the possibility that a reasonable jury could find the defendants guilty of possession without also finding them guilty of intent to distribute. 662 F.2d 277, 285 (4th Cir.1981) (15 tons of marijuana precluded the possibility of personal use). In Levy, we distinguished Seni and determined that the quantity of drugs presented in Levy was not so large as to preclude the inference of simple possession. 703 F.2d at 793, n. 7 (4.75 ounces not so great as to preclude use). In Baker, we followed Levy and held that absent a large quantity of drugs, or other factors ruling out the possibility of use, the defendant was entitled to a lesser included offense instruction regarding use. Baker, 985 F.2d at 1258.

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, 985 F.2d at 1259. Thus, in all of these cases, simple possession was inferable from the fact that the individual possessed the drugs in question, and a simple possession instruction was required absent proof which would make the inference of simple possession impossible.

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, 985 F.2d at 1259 (“the evidence, as a matter of law, does not rule out a possible inference of conspiracy to possess”).

Such a conclusion is strengthened by the court’s favorable cite in Baker to United States v. Gibbs, 904 F.2d 52 (D.C.Cir.1990), and by similar cases in other circuits. In Gibbs, the defendants were caught with weapons and 15.5 grams of cocaine (an amount almost five times larger than that possessed by the Defendant in the instant case). The court held that the quantity was not so large as to preclude use of cocaine and that the district court erred in not giving the lesser included offense instruction. In Gibbs, there was no additional evidence as to use except the quantity of drugs, but the court determined that 15.5 grams was not so large as to preclude the inference of use. Gibbs, 904 F.2d at 58. Thus, the language in Baker and its favorable cite to Gibbs, indicate that absent other factors, a jury could infer possession from a quantity of drugs not so large as to preclude the possibility of possession. Baker, 985 F.2d at 1259. See also United States v. Blake, 484 F.2d 50, 58 (8th Cir.1973) (possession of $4,200 worth of heroin not too large as to preclude inference of use).

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,² the inference of simple possession exists, and a jury instruction on the lesser-included charge is required. Thus, under our precedent, a jury may, but is not required to, infer that the Defendant possessed drugs for his own use solely based on the relatively small quantity of drugs.

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, 703 F.2d at 792. In Gibbs, the D.C. Circuit required an instruction for simple possession when the defendant possessed 15.5 grams of cocaine, an amount almost five times that in the case at bar. Gibbs, 904 F.2d at 58. The Fifth Circuit has also required a lesser-included offense instruction when the defendant possessed 16.48 grams of cocaine (over five times that in the instant case), two guns, and was caught flushing the drugs down the toilet when the police arrived. United States v. Lucien, 61 F.3d 366, 375 (5th Cir.1995). See also Boissoneault, 926 F.2d at 235 ($1,460 in tens and twenty dollar bills, and 5.31 grams of cocaine was not inconsistent with personal use); Blake, 484 F.2d at 58 (equivalent of 420 dime bags of heroin supported an inference of personal use or possession); United States v. Latham, 874 F.2d 852, 863 (1st Cir.1989) (personal use can be inferred from possession of one ounce of cocaine).

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, 396 U.S. 398, 422, 423, 90 S.Ct. 642, 654, 655, 24 L.Ed.2d 610 (1969) held that 14.68 grams of cocaine “is itself consistent with [the defendant] possessing the cocaine not for sale but exclusively for his personal use.” The Supreme Court reached this conclusion even though the defendant also possessed 275 glassine bags of heroin. Id. at 420, 90 S.Ct. at 654. Thus, the mere possession of a small amount of drugs may, in and of itself, raise the inference that the defendant possessed the drug for his personal use.³ The majority places the burden on the Defendant to present evidence of simple possession. However, the Defendant need not present any evidence regarding simple possession to be entitled to the lesser included offense instruction. The Defendant is entitled to such an instruction if “the lesser offense [is] fairly inferable from the evidence presented.” Walker, 75 F.3d at 180. The majority places a new burden on defendants and requires them to give up their rights and present evidence of the lesser-included offense in order to be entitled to the lesser-included offense instruction. However, no such burden is required. The defendant is entitled to the lesser-included offense instruction even if he presents no evidence, as long as a reasonable jury could convict him of the lesser offense and not the greater. In light of the facts of the present case, the jury could infer that the Defendant possessed the crack cocaine purely for his personal use.

Since I believe the district court erred in not providing an instruction to the jury on the lesser-included offense, I dissent.

1 . 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. No one testified that they saw the Defendant sell drugs and no one testified that the Defendant was in the business of selling drugs. The only direct testimony was testimony of the police stating that the Defendant was in an area known for drug sales. However, the statement by the majority also misses the point. Direct evidence is not necessary for the Defendant to be entitled to the lesser-included offense instruction. The Defendant is entitled to such an instruction if the lesser included offense may be inferred from the evidence. Baker, 985 F.2d at 1259.

2 . It should be noted that the defendant in the instant case possessed a quantity of drugs far below that in Levy or Baker.

3 . 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 possession of a small amount of crack alone obviously raises the inference of possession absent any additional evidence.