Filed: May 21, 2007
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS May 21, 2007 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III _ Clerk No. 06-60291 _ UNITED STATES OF AMERICA Plaintiff-Appellee, versus ANDY JONES Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Mississippi (No. 2:05-CR-070) _ Before HIGGINBOTHAM, WIENER, and CLEMENT, Circuit Judges. EDITH BROWN CLEMENT, Circuit Judge:* Defendant Andy Jones appeals his convi
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS May 21, 2007 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III _ Clerk No. 06-60291 _ UNITED STATES OF AMERICA Plaintiff-Appellee, versus ANDY JONES Defendant-Appellant. _ Appeal from the United States District Court for the Northern District of Mississippi (No. 2:05-CR-070) _ Before HIGGINBOTHAM, WIENER, and CLEMENT, Circuit Judges. EDITH BROWN CLEMENT, Circuit Judge:* Defendant Andy Jones appeals his convic..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 21, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
__________________________ Clerk
No. 06-60291
__________________________
UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
ANDY JONES
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
(No. 2:05-CR-070)
___________________________________________________
Before HIGGINBOTHAM, WIENER, and CLEMENT, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:*
Defendant Andy Jones appeals his conviction for possession with intent to distribute more
than five grams of cocaine base. For the following reasons, we AFFIRM.
I. FACTS AND PROCEEDINGS
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Following a jury trial, Andy Jones was convicted of possession with intent to distribute more
than five grams of cocaine base (“crack”) in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) and
sentenced to 120 months imprisonment. Jones asserts that the jury was presented with insufficient
evidence to conclude that he intended to distribute the drugs found in his possession. The
government presented the following evidence at trial.
On the night of October 2, 2004, Officer Darrell Taylor of the Clarksdale, MS, police
department pursued a suspicious vehicle that he ultimately found abandoned, with multiple doors ajar
and its gear still in drive. Approximately 30 to 45 seconds after the officer radioed that the vehicle
was found abandoned, Officer John Chambers observed Jones “trotting” between houses about one
block from the abandoned car. A search of the car did not reveal any contraband or establish any
connection to Jones.
When Jones reached the street, Chambers stopped him and asked Jones where he was coming
from. Chambers noticed that Jones had something in his mouth, making it impossible for Chambers
to understand his response. Chambers conducted a pat-down search of Jones that did not reveal any
contraband. By that time, two other officers, Lee Clayton and Ernest Moore, had arrived at the
scene. Chambers commanded Jones to spit out what Jones had in his mouth. According to
Chambers, Jones spit two golf-ball-sized plastic bags into Jones’s hand. To Chambers, the bags
appeared to contain crack. Chambers testified that Jones paused for one or two seconds with the
plastic bags in his hand and then threw the bags, one of which broke open upon hitting a tree branch
and the other of which flew over a house and landed in the back yard.
Clayton did not witness what Jones had in his hand before it was thrown, but heard a noise
after the throw that sounded like pebbles hitting the ground. Moore saw Jones throw two bags, one
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that he heard hit the tree, followed by a sound like gravel being thrown, and the other going over the
house. The officers found no evidence of the bag that supposedly hit the tree, but located the other
bag, intact, in the backyard of the house.
Results from a DNA test of the plastic bag were a conclusive match to Jones. The plastic bag
was determined to contain 7.07 grams of crack, or less than one-third of an ounce. DEA Special
Agent Dwayne Smith testified that this quantity of crack had a street value of a little over $700 (or
$100 per gram) in Clarksdale. Smith testified that the crack was broken down into small rocks that
could be sold, including many $20-dollar rocks, a $50-dollar rock, and a $100-dollar rock; that the
crack was kept in a hand-tied clear plastic baggy, which is indicative of drug trafficking; and that
Jones did not possess a crack pipe or a lighter, paraphernalia that a crack user would have.
Smith also testified that he had 15 years of experience as a DEA agent and had been involved
in “hundreds and hundreds” of drug investigations, with the majority of them involving crack; that
he had never seen a case in which a user possessed such a large quantity of crack; and that users
typically will have one or two rocks and will smoke a rock as soon as they get it. Under cross-
examination, Smith also stated that individuals who distribute drugs commonly possess cell phones,
firearms, large quantities of cash, and client lists, and that no such paraphernalia was found on Jones.
After the Government closed its case, Jones moved for a judgment of acquittal, arguing that
the evidence was insufficient to show beyond a reasonable doubt that Jones ever possessed the crack.
The district court denied the motion. The defense then successfully moved to have the jury instructed
on the lesser included offense of simple possession. After the jury found Jones guilty of possession
with intent to distribute, Jones filed a timely motion for judgment of acquittal or new trial, arguing
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that the evidence was insufficient to prove an intent to distribute and that only simple possession was
proven. The district court also denied this motion. Jones filed a timely notice of appeal.
II. STANDARD OF REVIEW
“In evaluating the sufficiency of the evidence, we view the evidence in the light most favorable
to the government and resolve questions of credibility in favor of the jury’s verdict.” United States
v. Harris, 477 F.3d 241, 244 (5th Cir. 2007). “The evidence is sufficient to support the jury’s verdict
if a rational trier of fact could have found beyond a reasonable doubt the essential elements of the
charged crime.”
Id.
III. DISCUSSION
Jones argues that the quantity of crack he allegedly possessed, 7.07 grams, in combination
with the other evidence presented at trial, is insufficient to support a conviction for possession with
intent to distribute. “The essential elements of possession with the intent to distribute controlled
substances in violation of 21 U.S.C. § 841 are 1) knowledge, 2) possession, and 3) intent to distribute
the controlled substances.” United States v. Delgado, 256 F.3d 264, 274 (5th Cir. 2001).
Possession of a small quantity of drugs consistent with personal use does not, without other
evidence, raise an inference of intent to distribute. United States v. Turner, 396 U.S. 398, 423 (1970)
(holding possession of 14.68 grams of a cocaine-sugar mixture not sufficient to infer that the
possessor was distributing it). However, “[t]he form and amount of crack recovered is some
evidence of an intent to distribute,” and this court has found sufficient evidence to support a
conviction for possession with intent to distribute in the case of a defendant found with a lesser
amount of crack. United States v. Cain,
440 F.3d 672, 675 (5th Cir. 2006) (affirming a conviction
for possession with intent to distribute when the defendant possessed 2.4 grams of crack broken into
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over 30 pieces). In Cain, the crack recovered was broken into numerous smaller pieces worth
between five and twenty dollars, the total value of the crack was approximately 400 dollars, and “two
police officers testified that they had never arrested a drug user with such a large amount of cocaine
base.” Id. The officers also testified that the defendant was not carrying any paraphernalia consistent
with being a user.
Id.
Here, the officers recovered more crack, in both weight and street value, than was recovered
from the defendant in Cain. The jury also heard uncontradicted testimony that the quantity Jones
possessed was inconsistent with personal use. Cf. United States v. Kates,
174 F.3d 580, 582–83 (5th
Cir. 1999) (per curiam) (upholding conviction in part because of uncontroverted testimony from a
DEA agent that the quantity of crack was distributable and “hardly ever purchased for personal use”).
Finally, the jury also heard testimony that Jones actually spit two very similar bags out of his mouth
into his hand before he was arrested, both of which Officer Chambers believed contained crack.
When Jones threw the bags, one broke, and two officers heard a sound consistent with crack rocks
landing on the roof of the house. It would be reasonable from this evidence for the jury to have
inferred that Jones was actually carrying more crack than the prosecution could prove and that he had
two baggies of crack in his possession when Officer Chambers approached him.
Jones asserts that United States v. Skipper, 74 F.3d 608 (5th Cir. 1996), supports his position.
In Skipper, the defendant possessed 2.89 grams of crack and a straight-edge razor, but no smoking
paraphernalia.
Id. at 611. The arresting officer testified that the razor was consistent with personal
consumption, because it could be used to cut the crack into smaller pieces.
Id. Consequently, the
only evidence from which the jury could infer intent to distribute was the quantity of crack, but this
court held that “this quantity is not clearly inconsistent with personal use” and reversed the
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conviction. Id. Unlike this case, in which the unrebutted testimony at trial was that the quantity of
drugs possessed by Jones was inconsistent with personal use, in Skipper the government merely
“introduced some testimony indicating that this amount of drugs could suggest drug dealing.”
Id.
(emphasis added).
In United States v. Hunt, 129 F.3d 739, 744 (5th Cir. 1997), this court reversed the
conviction of a defendant found with 7.998 grams of crack (worth 200 dollars) in her bedroom. In
Hunt, trial testimony “indicated, as in Skipper, that [the amount possessed] was also consistent with
personal use.”
Id. at 742. In particular, a police detective testified in Hunt that a crack addict may
smoke nearly 500 dollars of crack in a single day.
Id. at 741. Moreover, the defendant’s house
contained paraphernalia (a razor blade and cigar wrappers) which the detective admitted were
consistent with personal use, though it did not contain any pipes or other smoking devices.
Id. at
743. Here, the jury did not hear any testimony that the quantity of drugs or any of the other
circumstances of Jones’s arrest were consistent with his personal use of the crack he possessed.
The only testimony that might arguably raise the inference that Jones was not distributing the
crack was that he did not possess a cell phone, a firearm, large quantities of cash, or a client list when
he was arrested, these items being commonly found on drug dealers. However, this evidence does
not by itself negate the value of the other evidence presented. Viewing the evidence in the light most
favorable to the verdict, we hold that a rational trier of fact could find beyond a reasonable doubt that
Jones possessed the crack with an intent to distribute it.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
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