United States v. Johnson

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
9-10-2008
USA v. Johnson
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1423
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 07-1423
__________
UNITED STATES OF AMERICA
v.
JACKIE JOHNSON,
Appellant
__________
On Appeal from the United States District Court
for the District of Delaware
(D.C. Criminal No. 04-103-SLR)
District Judge: Honorable Sue L. Robinson
__________
Submitted Under Third Circuit LAR 34.1(a)
on March 27, 2008
Before: McKEE, RENDELL, and TASHIMA,* Circuit Judges.
(Filed: September 10, 2008)
__________
OPINION OF THE COURT
__________
TASHIMA, Circuit Judge.
*
Honorable A. Wallace Tashima, Senior Judge of the United States Court of Appeals
for the Ninth Circuit, sitting by designation.
Jackie Johnson was convicted following a jury trial on one count of possession
with intent to distribute more than 50 grams of a mixture containing a detectable amount
of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii). Johnson
contends that the district court erred in declining to give the jury instruction he requested,
which stated that possession with intent to deliver more than 50 grams of cocaine was a
lesser included offense of possession with intent to deliver more than 50 grams of cocaine
base. We disagree with Johnson’s contention and will affirm. We have jurisdiction
pursuant to 28 U.S.C. § 1291.
A confidential informant of the Delaware State Police made several phone calls to
Johnson and arranged to meet Johnson at a mall parking lot. Johnson was arrested in the
parking lot after a ziploc bag that contained what officers recognized as crack cocaine
was found in his vehicle. A field test of the substance at the scene showed a positive
result for cocaine. Subsequently, a Drug Enforcement Agency (“DEA”) chemist
performed further tests on the substance and concluded that it was crack cocaine base.
Johnson was indicted on one count of possession with intent to distribute more
than 50 grams of a mixture containing a detectable amount of cocaine base. The
indictment alleged that the substance was “in the crack form of cocaine base and weighed
more than 150 grams.”
At trial, defense counsel argued that there was evidence in the record that the drugs
were cocaine, not crack, relying on the preliminary field test conducted at the scene of the
arrest. He requested a jury instruction on what he called either the alternative offense or
the lesser included offense of possession with intent to distribute cocaine, rather than
cocaine base. The government initially did not object, and the court stated that it would
probably give the instruction. Subsequently, however, the government raised the concern
that Johnson had not been charged with possession of cocaine. Further, it pointed out that
the field test indicating that the substance was cocaine was a preliminary test, which the
government argued was not a sufficient basis for conviction. After further discussion, the
District Court declined to give the instruction.
The jury found Johnson guilty of possession with intent to distribute more than 50
grams of a mixture and substance containing a detectable amount of cocaine base.
Johnson filed a motion for judgment of acquittal and for new trial, in which he raised the
issue of the court’s failure to give the requested lesser included offense instruction. The
District Court denied the motion, explaining that the field test was a preliminary tool to
determine the presence of narcotics, rather than conclusive evidence that the drugs were
in fact cocaine, rather than cocaine base. It then sentenced Johnson to 240 months’
imprisonment. Johnson timely appealed.
We review the refusal to give a particular jury instruction for abuse of discretion,
although we exercise plenary review over the question of whether the jury instructions
state the proper legal standard. United States v. Leahy, 445 F.3d 634, 642 (3d Cir. 2006).
We will “reverse ‘a district court’s denial to charge a specific jury instruction only when
the requested instruction was correct, not substantially covered by the instructions given,
and was so consequential that the refusal to give the instruction was prejudicial to the
defendant.’” Id. at 651 (quoting United States v. Phillips, 959 F.2d 1187, 1191 (3d
Cir.1992)).
Johnson relies on United States v. Lacy, 446 F.3d 448 (3d Cir.), cert. denied, 127
S. Ct. 542 (2006), and United States v. Jackson, 443 F.3d 293 (3d Cir. 2006), to argue
that possession of cocaine is a lesser included offense of possession of cocaine base. In
Lacy, the defendant was charged with possession with intent to distribute five grams or
more of a substance containing a detectable amount of cocaine base, in violation of 21
U.S.C. § 841(a)(1) and (b). The jury acquitted him of that offense, but convicted him of
simple possession of more than five grams of cocaine base, in violation of 21 U.S.C. §
844, and possession with intent to distribute an unspecified amount of cocaine base, in
violation of 21 U.S.C. § 841(a)(1).
On appeal, the defendant argued that simple possession of five or more grams of
cocaine base was not a lesser included offense of possession with intent to distribute five
or more grams of cocaine base. We disagreed, reasoning that, after Apprendi v. New
Jersey, 530 U.S. 466 (2000), “drug identity and quantity should be considered the
functional equivalents of elements of a simple possession offense when they increase a
defendant’s maximum statutory sentence exposure.” Lacy, 446 F.3d at 453. Thus, the
elements of the charged offense were “(1) knowing or intentional (2) possession (3) with
intent to distribute (4) five grams or more (5) of a mixture or substance containing
cocaine base.” Id. at 454. The elements of the simple possession offense of which he
was convicted were “(1) knowing or intentional (2) possession (3) of more than five
grams (4) of a mixture or substance containing cocaine base.” Id. It was clear that “the
simple possession offense of which Lacy was convicted is a lesser included offense of the
charged possession with intent to distribute offense. The only difference between the two
offenses is that the section 841 offense requires proof of intent to distribute the drugs.”
Id.
The defendant in Jackson was charged, as pertinent here, with possession with
intent to distribute more than five grams of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1), and possession with intent to distribute more than five grams of cocaine base
within 1,000 feet of a school, in violation of 21 U.S.C. § 860(a). He was convicted of
both counts. On appeal, he contended that the first charge was a lesser included offense
of the second, and the government conceded that he was correct. We agreed, stating that,
in order to have found him guilty of § 860(a), the court “must have first found him guilty
of § 841(a)(1),” and that a “conviction under § 860(a) only requires a finding of one
additional element, the 1,000-foot proximity to a school.” Jackson, 443 F.3d at 301;
accord United States v. Jones, 489 F.3d 243, 254 (6th Cir. 2007) (stating that, “[b]y the
explicit terms of § 860, . . . § 841(a)(1) is a lesser-included offense”).
Neither Jackson nor Lacy supports Johnson’s argument. It is self-evident by the
very language of § 860 that § 841(a)(1) is a lesser included offense, and every circuit to
have addressed the issue has so held. See Jones, 489 F.3d at 254 (citing cases).
Similarly, it is commonly held and self-evident that simple possession of cocaine base is a
lesser included offense of possession with intent to distribute cocaine base. See, e.g.,
United States v. Mays, 466 F.3d 335, 342 (5th Cir. 2006) (“Possession of a controlled
substance is undeniably a lesser-included offense of possession with intent to
distribute.”), cert. denied, 127 S. Ct. 1313 (2007); United States v. Puckett, 405 F.3d 589,
600 (7th Cir. 2005) (stating that it is clear that simple possession is a lesser included
offense of possession with intent to distribute).
The question of whether possession with intent to distribute cocaine is a lesser
included offense of possession with intent to distribute cocaine base, however, is not
clearly controlled by our precedent. We note that there is out-of-circuit authority that
distribution of powder cocaine is a lesser included offense of distribution of cocaine base.
See United States v. Lacey, 511 F.3d 212, 215 (D.C. Cir. 2008). Given the record in this
case, however, we need not resolve that issue.
One reason why the District Court declined to give Johnson’s requested jury
instruction was that it concluded that there was not a sufficient evidentiary basis to
support giving of the charge. The DEA chemist testified unequivocally that the drugs
were “crack cocaine base,” and the arresting officers testified that the drugs looked like
crack cocaine. The court thus concluded that there was insufficient evidence to warrant
an instruction on possession with intent to distribute cocaine. The district court’s
conclusion was not an abuse of discretion.
The only evidence on which Johnson based his request for the lesser included
offense instruction was the testimony that the preliminary field test showed “a positive
result for cocaine.” There was no testimony, however, that the field test ruled out that the
drugs were cocaine base. Moreover, cross-examination of the arresting officer revealed
that a field test is only a preliminary test and that the substance is eventually sent to a
laboratory for a definitive test. This was corroborated by the testimony of the DEA
chemist that a field test is a preliminary test, and that the definitive test is conducted in the
laboratory by a chemist.
Thus, the record supports the District Court’s ruling that there was insufficient
evidence to warrant an instruction on possession with intent to distribute cocaine. “A jury
instruction must contain a lesser included offense only if the evidence adduced at trial
could support a guilty verdict on either charge.” Gov’t of Virgin Islands v. Knight, 989
F.2d 619, 632 (3d Cir. 1993). It was clear that the field test was only a preliminary test,
and there was no testimony that the field test was negative for cocaine base, only that it
was positive for cocaine. The DEA chemist testified that the definitive tests he conducted
indicated that the substance was crack cocaine. Further, one of the arresting officers
testified that he knew the substance was crack cocaine, based on its appearance. The
District Court did not abuse its discretion in concluding that there was insufficient
evidence to warrant giving an instruction on possession with intent to distribute cocaine.
Cf. United States v. Harris, 313 F.3d 1228, 1241 (10th Cir. 2002) (holding that the district
court did not abuse its discretion in denying the request for a jury instruction on the lesser
included offense of simple possession where the quantity of cocaine base and the
defendant’s own testimony precluded the finding that a rational jury could have acquitted
the defendant on the charge of possession with intent to distribute).
For the foregoing reasons, we will AFFIRM the judgment of conviction.