Filed: Jul. 14, 2009
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Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT July 14, 2009 No. 08-16088 THOMAS K. KAHN Non-Argument Calendar CLERK _ D. C. Docket No. 08-80024-CR-DMM UNITED STATES OF AMERICA, Plaintiff-Appellee, versus RODERRICK VANN, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (July 14, 2009) Before BLACK, HULL and FAY, Circuit Judges. PER CURIAM: After a jury trial
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT July 14, 2009 No. 08-16088 THOMAS K. KAHN Non-Argument Calendar CLERK _ D. C. Docket No. 08-80024-CR-DMM UNITED STATES OF AMERICA, Plaintiff-Appellee, versus RODERRICK VANN, Defendant-Appellant. _ Appeal from the United States District Court for the Southern District of Florida _ (July 14, 2009) Before BLACK, HULL and FAY, Circuit Judges. PER CURIAM: After a jury trial,..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
July 14, 2009
No. 08-16088 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-80024-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODERRICK VANN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 14, 2009)
Before BLACK, HULL and FAY, Circuit Judges.
PER CURIAM:
After a jury trial, Roderrick Vann appeals his convictions for two counts of
possession with intent to distribute at least five grams of crack cocaine found in his
apartment, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) (Counts 1 and 2),
and one count of possession of a firearm and ammunition by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Count 3). After review, we affirm.
I. BACKGROUND
A. Arrest and Search
On April 24, 2007, two Palm Beach County Sheriff’s deputies, Officer
Lonney Moral and Officer Michael Murray, submitted an application for a search
warrant and affidavit to a Palm Beach County Circuit Judge. In support of the
application, the officers submitted an affidavit, which they both signed. The
officers sought to search the premises and curtilage of apartment 5 at 605 North
Federal Highway in Lake Worth, Florida.
According to the officers’ affidavit, a black male calling himself “Hot”
resided at the apartment. The officers averred that, on April 21, 2007, they
personally observed Hot sell crack cocaine to a confidential informant (“CI”)
during two separate controlled buys conducted over a one-hour period.
Specifically, the officers averred that, while each CI was under constant
surveillance, Hot exited apartment 5, approached the CI and exchanged $20 for .2
2
grams of crack cocaine. After each transaction, the officers recovered the
purchased crack cocaine from the CI and confirmed the identity and weight of the
drug through field testing. In addition, during the one-hour period, Officer Moral
observed three “hand-to-hand” transactions between Hot and unknown individuals.
On April 24, 2007, the judge issued the search warrant. On May 3, after
observing Defendant Vann leave apartment 5 and ride as a passenger in a car
driven by a woman, law enforcement officers conducted a traffic stop. In a search
incident to Vann’s arrest, Officer Moral found a ten-dollar bill containing a piece
of crack in the car’s ashtray. After Vann was given a Miranda warning, Vann said
that the crack cocaine found in the car belonged to him.
Vann was taken by patrol car to apartment 5, where officers executed the
search warrant. During the search, officers found a loaded handgun and two bags
of crack cocaine, one in a bedroom dresser drawer along with a razor blade and a
lighter and the other in the pocket of a jacket hanging in the bedroom closet. The
two bags found in the apartment contained 27.9 and 12.7 grams of crack cocaine.
Later, during a recorded interview at the police station, Vann told Officer
Moral that he sold crack cocaine because he had no other way to earn an income
and that he traded crack cocaine for the handgun. Vann also indicated that he was
3
the only person living in apartment 5, although his girlfriend dropped by
occasionally.
B. Indictment
Vann was indicted on these four counts: (1) possession with intent to
distribute at least five grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(B) (Count 1); (2) possession with intent to distribute at least five grams
of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) (Count 2); (3)
possession of a firearm and ammunition by a person previously convicted of a
crime punishable by more than one year of imprisonment, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e) (Count 3); and (4) possession of a firearm and ammunition
during and in relation to a drug-trafficking crime–that is, the offenses charged in
Counts 1 and 2–in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 4), all occurring
on or about May 3, 2007. Vann was not indicted for the controlled buys conducted
on April 21, 2007 and described in the officers’ search warrant affidavit.
C. Motion to Suppress
Prior to trial, Vann filed a motion asking the district court to conduct an in
camera hearing to determine whether the testimony of the government’s CIs might
assist Vann at a suppression hearing and at trial. Vann argued that the search
warrant affiants misidentified Vann as the individual who sold the CIs crack
4
cocaine on April 21, 2007 and that the CIs might support this claim. Vann also
filed motions in limine seeking to exclude: (1) evidence seized from his apartment
because the search warrant was not supported by probable cause; and (2) evidence
of the April 21, 2007 controlled buys. After a suppression hearing, the district
court concluded that Vann had not met the threshold requirement for a Franks
hearing and denied Vann’s motions to suppress and to disclose the identities of the
CIs. In response, Vann acknowledged that his motion in limine under Rule 404(b)
had been resolved because the government stated that it did not intend to introduce
evidence of the April 21 transactions.
D. Trial and Sentencing
Just before trial, Vann objected to the introduction of evidence of the crack
cocaine found in his car because it was not charged in the indictment. He also
objected to any mention of the search warrant because the jury would construe its
existence as a “judicial stamp of approval.” The district court overruled Vann’s
objection to the introduction of the crack cocaine found in the car, concluding that
this evidence was “part of the offense or at least inextricably intertwined” with it.
The district court sustained Vann’s objection to the admission of the search
warrant, but overruled the objection to mentioning the warrant.
5
At trial, the government presented testimony from Officer Moral and two
other law enforcement officers as to the controlled buys, Vann’s arrest, the search
of apartment 5 and Vann’s subsequent confession. Several officers, including
Officer Moral, testified that the amount of drugs found in Vann’s apartment
indicated that he was a street-level dealer and, as such, the officers would not have
expected to find sales records, such as a ledger, or scales during the search. Officer
Moral also testified that, although they found a lighter, they found no other drug
paraphernalia commonly used by crack cocaine users, such as a pipe.
The government presented testimony of Jeanette Marie Perr, a forensic
chemist with the Drug Enforcement Administration. Perr stated that the two
packages of crack cocaine found in Vann’s apartment weighed 12.3 grams and
26.1 grams.
Over Vann’s objection, the government also called as an expert witness
Detective Dwayne Fernendes of the Delray Beach Police Department, an
experienced narcotics investigator who had posed undercover as a drug distributor
and drug purchaser. Fernendes testified, inter alia, that: (1) a gram of crack
cocaine could equal between 7 and 10 doses, at $10 to $20 per dose; (2) the crack
cocaine rocks found in Vann’s apartment were in the size and shape of those sold
by street-level dealers for $10 to $20 per rock; (3) forty grams of crack would
6
equal 400 doses; and (4) the amounts of crack cocaine found in Vann’s
apartment–27.8 grams and 12.7 grams–were “absolutely” distribution amounts.
In addition, Detective Fernendes stated that he had never seen a crack
cocaine user with a large amount of crack cocaine. Typically a user would have at
most seven to ten crack cocaine rocks. And, a user would need a pipe in addition
to a lighter to smoke the crack. Fernendes explained that large rocks of crack
cocaine are cut up with razor blades, and that street-level dealers do not typically
use scales to measure doses. Fernendes also had not seen street-level drug dealers
who kept ledgers because street-level drug dealers typically receive cash at the
time they make their deals, rather than front drugs to buyers.
After the government rested, Vann moved for a judgment of acquittal on
Counts 1 and 2 on double jeopardy grounds. The district court denied the motion.
Vann also requested a jury instruction on the lesser-included offense of simple
possession for Counts 1 and 2 and that the verdict form include this offense. The
district court postponed ruling on this request while Vann presented his defense.
Vann called Amber Armstrong, his girlfriend from 2004 to 2007.
Armstrong testified that she was the driver of the car during the May 3, 2007 traffic
stop. According to Armstrong, she moved out of Vann’s apartment a year and a
7
half before his arrest when she learned Vann was using drugs. At that time,
Armstrong saw a small amount of drugs in the apartment, but not a handgun.
After the defense rested, the district court denied Vann’s request that the jury
verdict form include the lesser-included offense of simple possession. The district
court also denied Vann’s renewed motion for a judgment of acquittal. The district
court instructed the jury that it could find Vann guilty of Counts 1 and 2 if it found
beyond a reasonable doubt that Vann: (1) knowingly possessed a controlled
substance; and (2) possessed the controlled substance with the intent to distribute
it. The district court explained that the second element “simply means to possess
with intent to deliver or transfer possession of a controlled substance to another
person with or without any financial interest in the transaction.” The jury found
Vann guilty on the drug offenses in Counts 1 and 2 and the felon in possession of a
firearm offense in Count 3, but acquitted him of Count 4, the offense of possessing
a firearm during a drug offense. The district court imposed a 240-month sentence.
II. DISCUSSION
A. Franks Hearing
Vann argues that he was entitled to a Franks hearing before the district court
ruled on his motion to suppress. Vann claims the search warrant affidavit’s
statements linking the occupant of apartment 5 with the controlled buys were false.
8
Under Franks, when a defendant “makes a substantial preliminary showing
that a false statement knowingly and intentionally, or with reckless disregard for
the truth, was included by the affiant in the warrant affidavit, and if the allegedly
false statement is necessary to the finding of probable cause, the Fourth
Amendment requires that a hearing be held at the defendant’s request.” Franks v.
Delaware, 438 U.S. 154, 155-56,
98 S. Ct. 2674, 2676 (1978). To be entitled to a
hearing, the defendant must “point out specifically the portion of the warrant
affidavit that is claimed to be false” and provide “a statement of supporting
reasons.”
Id. at 171, 98 S. Ct. at 2684. The defendant’s attack “must be more than
conclusory” and the allegations of a deliberate falsehood or of reckless disregard
for the truth “must be accompanied by an offer of proof.”
Id. Furthermore, the
alleged deliberate falsity or reckless disregard must be “only that of the affiant, not
of any nongovernmental informant.” Id.1
Here, Vann failed to make a substantial preliminary showing that the
officers deliberately or recklessly included false statements in their affidavit. We
note that, although Vann characterizes the allegedly false statements as
1
Although generally we review a district court’s denial of a request for an evidentiary
hearing for an abuse of discretion, we have not articulated the precise standard of review for the
denial of a request for a Franks hearing. See United States v. Arbolaez, 450 F.3d 1283, 1293
(11th Cir. 2003). We need not resolve this issue, however, because even under a more exacting
de novo standard of review, we find no error.
9
misidentification, the officers’ affidavit did not identify Vann as the individual
calling himself “Hot” and selling the crack cocaine outside the apartment. The
affidavit simply stated that a person named Hot exited apartment 5 and sold crack
cocaine to the CIs. Further, Vann does not seem to dispute that the controlled buys
occurred outside apartment 5, only that he was the man seen by the officers selling
the crack cocaine to their CIs.
Regardless, Vann failed to offer any proof to support his claim that the
statements linking an “occupant of apartment # 5” to the controlled buys were
false. Vann argued that he could not offer proof because the district court refused
to order the disclosure of the CIs’ identities. However, this nondisclosure did not
prevent Vann from submitting his own affidavit stating that he was not the person
who sold the crack cocaine to the CIs and that no one else had access to his
apartment on April 21 or from making such a proffer at the suppression hearing.
Moreover, Vann did not identify any inconsistencies or other circumstances that
might cast doubt on the officers’ statements that the drug dealer came from
apartment 5, particularly in light of Vann’s confession to dealing crack cocaine and
the evidence that he was the apartment’s only occupant. Cf. United States v. Kirk,
781 F.2d 1498, 1502-03 (11th Cir. 1986) (upholding district court’s finding of
reckless disregard in the misidentification of defendant and a co-conspirator as two
10
known drug traffickers where their physical descriptions did not match those of
known drug traffickers and officers observed defendant for forty minutes from a
distance of only fifteen feet).
Given that Vann’s attack on the veracity of the affiants’ statements was
conclusory and unsupported by an offer of proof, the district court did not err in
denying Vann’s request for a Franks hearing.
B. CIs’ Identities
Vann argues that the district court erred in denying his motion to disclose the
names of the CIs involved in the controlled buys described in the warrant affidavit.
The government has a privilege to withhold the identity of law enforcement
informants. Roviaro v. United States, 353 U.S. 53, 59,
77 S. Ct. 623, 627 (1957).
“The purpose of the privilege is the furtherance and protection of the public
interest in effective law enforcement.”
Id. However, the privilege is limited.
Where the disclosure of an informer’s identity, or of the contents of
his communication, is relevant and helpful to the defense of an
accused, or is essential to a fair determination of a cause, the privilege
must give way. In these situations the trial court may require
disclosure and, if the Government withholds the information, dismiss
the action. Most of the federal cases involving this limitation on the
scope of the informer’s privilege have arisen where the legality of a
search without a warrant is in issue and the communications of an
informer are claimed to establish probable cause. In these cases the
Government has been required to disclose the identity of the
informant unless there was sufficient evidence apart from his
confidential communication.
11
Id. at 60-61, 77 S. Ct. at 628 (footnotes omitted). The Roviaro balancing test takes
into account “the particular circumstances of each case, the crime charged, possible
defenses, and the potential significance of the informant’s testimony.” United
States v. Gutierrez,
931 F.2d 1482, 1490 (11th Cir. 1991). This Court has “focused
the inquiry on three factors: the extent of the informant’s participation in the
criminal activity, the directness of the relationship between the defendant’s
asserted defense and the probable testimony of the informant, and the
government’s interest in nondisclosure.”
Id. (quotation marks omitted).
The defendant has the burden to show that a CI’s testimony “would
significantly aid in establishing an asserted defense,” and “[m]ere conjecture about
the possible relevance of [the CI’s] testimony is insufficient to compel disclosure.”
Id. at 1491 (quotation marks omitted); see also United States v. Alfonso,
552 F.2d
605, 618 (5th Cir. 1977) (holding that disclosure of identity of a CI used to secure
a wiretap order was not required, as the CI did not participate in the activity for
which the defendant was charged).2
Furthermore, “[a]n in camera hearing may be helpful in balancing the
interests of the appellants against those of the government, but the precedent of this
2
This Court adopted as binding precedent all decisions of the former Fifth Circuit handed
down prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc).
12
Court holds that an in camera hearing is not required whenever the identity of an
informant is requested.” United States v. Kerris, 748 F.2d 610, 614 (11th Cir.
1984); see also United States v. Tenorio-Angel,
756 F.2d 1505, 1509 n.7 (11th Cir.
1985) (noting that while the “Supreme Court has indicated that an in camera
hearing is one way to aid the trial court in its application of the Roviaro test[,]” the
trial court’s decision on whether to hold a hearing “depends upon whether the trial
court has the information necessary to determine if disclosure of the informant’s
identity is required without holding an in camera hearing”).3
Vann argues that the disclosure of the CIs’ identities would establish that he
was not the drug dealer who sold the CIs the crack cocaine on April 21. However,
Vann was not charged with any crimes stemming from the April 21 drug
transactions. In fact, Vann’s misidentification defense relates to the issuance of the
search warrant and not to the crimes charged in the indictment. Because the CIs
were not involved in the criminal conduct with which Vann was indicted, Vann has
not satisfied the first Roviaro factor.
For the same reason, Vann has not shown a direct relationship between his
defense at trial and the testimony he expects from the CIs. This is particularly true
3
We review the denial of a motion to disclose the identity of an informant for abuse of
discretion. Gutierrez, 931 F.2d at 1490. We also review for abuse of discretion the denial of a
request for an in camera hearing. United States v. Kerris,
748 F.2d 610, 614 (11th Cir. 1984).
13
given that the government did not plan to and did not actually introduce evidence
of the April 21 drug transactions or call the CIs as government witnesses. Thus,
any testimony by the CIs that Vann was not present during the April 21 drug
transactions would not aid Vann in defending against the charged crimes that
occurred on May 3. Nor would such testimony contradict the other evidence of his
guilt, such as his confessions and the large amount of crack cocaine found in his
apartment. Thus, Vann has not satisfied the second Roviaro factor.
Finally, as to the third Roviaro factor, the government’s interest in
nondisclosure was significant given that at least one of the CIs was threatened after
the search warrant was executed. Because the government had a strong interest in
nondisclosure and Vann failed to show that the CIs’ alleged testimony would
significantly aid him in his trial defense, the district court did not abuse its
discretion in refusing to compel disclosure of the CIs’ identities. Further, because
the district court had all the information necessary to determine whether disclosure
was required, the district court did not abuse its discretion in declining to hold an
in camera hearing on the issue.4
C. Admission of Crack Cocaine Found in Vann’s Car
4
The fact that Vann’s misidentification defense relates to only the validity of the search
warrant and not to the charged crimes distinguishes his case from United States v. Rutherford,
175 F.3d 899 (11th Cir. 1999), and United States v. Panton,
846 F.2d 1335 (11th Cir. 1988).
14
Vann argues that the district court should have excluded evidence of the
crack cocaine seized from the car after the traffic stop.
Under Federal Rule of Evidence 404(b), evidence of uncharged crimes may
be admitted only for purposes other than proof of bad character.5 Rule 404(b) is a
rule “of inclusion which allows [extrinsic] evidence unless it tends to prove only
criminal propensity.” United States v. Ellisor, 522 F.3d 1255, 1267 (11th Cir.
2008) (alteration in original) (quotation marks omitted). “Evidence, not part of the
crime charged but pertaining to the chain of events explaining the context, motive
and set-up of the crime, is properly admitted if linked in time and circumstances
with the charged crime, or forms an integral and natural part of an account of the
crime, or is necessary to complete the story of the crime for the jury.” United
States v. Williford,
764 F.2d 1493, 1499 (11th Cir. 1985). Accordingly, evidence
of uncharged crimes is admissible if it is “(1) an uncharged offense which arose out
of the same transaction or series of transactions as the charged offense,
(2) necessary to complete the story of the crime, or (3) inextricably intertwined
5
Rule 404(b) states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of
a person in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident . . . .
Fed. R. Evid. 404(b).
15
with the evidence regarding the charged offense.” United States v. McLean, 138
F.3d 1398, 1403 (11th Cir. 1998) (quotation marks omitted).6
Officers stopped the car after observing Vann leave his apartment and get in
it. Immediately after stopping the car and finding the crack cocaine, officers took
Vann back to the apartment, executed the search warrant and found the additional
crack cocaine that underpins the charged drug offenses. The crack cocaine found
in the apartment was at least partially broken up into $10 and $20 rocks, and the
rock found in the car was a $10 or $20 piece.
Given these facts, the district court did not err in finding that the crack
cocaine in the car was linked in time and circumstances with and arose from the
same transaction as the charged offenses, namely Vann’s possession of the crack
cocaine found in his apartment. The traffic stop, Vann’s arrest and the search of
the car were also all part of the chain of events leading up to discovery of the drugs
and handgun in Vann’s apartment. Further, Vann failed to articulate how the
admission of this evidence unfairly prejudiced him sufficient to substantially
outweigh its probative value. See Chavez, 204 F.3d at 1317. Thus, the district
court did not abuse its discretion in admitting evidence of the crack rock found in
6
We review admissions of Rule 404(b) evidence for abuse of discretion. Ellisor, 522
F.3d at 1267. Furthermore, evidence admitted in violation of Rule 404(b) is harmless when
there is substantial evidence of the defendant’s guilt. United States v. Chavez, 204 F.3d, 1305,
1317 (11th Cir. 2000).
16
the car. And, in any event, given the large amount of drugs found in Vann’s
apartment and his confession, any alleged error in admitting this evidence was
harmless.
D. Expert Testimony
Vann contends that the district court abused its discretion when it permitted
Detective Fernendes to testify as an expert witness. Vann does not challenge
Fernendes’s qualifications as an expert or his methodologies. Rather, Vann argues
that Fernendes exceeded the scope of his role as an expert when he testified that
the amount of drugs found in Vann’s apartment was a distribution amount.
Federal Rule of Evidence 702 permits expert testimony if “specialized
knowledge” will help the jury “to understand the evidence or to determine a fact in
issue.” Fed. R. Evid. 702. Furthermore, we have concluded that “[t]he operations
of narcotics dealers are a proper subject for expert testimony under Rule 702,” and
have “recognized the well-established rule that an experienced narcotics agent may
testify as an expert to help a jury understand the significance of certain conduct or
methods of operation unique to the drug distribution business.” United States v.
Garcia, 447 F.3d 1327, 1335 (11th Cir. 2006) (quotations marks omitted); see also
United States v. Butler,
102 F.3d 1191, 1199 (11th Cir. 1997) (holding that the
district court did not abuse its discretion in allowing testimony, based on the
17
officer’s experience, that money seized was packaged in “dealer folds” – a manner
of packaging specific to drug dealers).7
Here, Fernendes’s testimony that the amount of crack cocaine found in
Vann’s apartment was a typical distribution amount aided the jury in understanding
the significance of the possession of such a large amount of drugs. Furthermore,
any alleged error in admitting this testimony was harmless given that two other
officers also testified, without objection, that the amount of drugs found in the
apartment indicated Vann was a street-level drug dealer.
E. Sufficiency of the Evidence on Counts 1 and 2
Vann argues that the government failed to prove beyond a reasonable doubt
that he had the intent to distribute the crack cocaine he possessed. Because Vann
failed to properly preserve this argument by raising it in his motion for a judgment
of acquittal, we review this claim only for a miscarriage of justice. See United
States v. Tapia, 761 F.2d 1488, 1491-92 (11th Cir. 1985).8 Under this standard, we
will reverse only upon a finding that “the evidence on a key element of the offense
is so tenuous that a conviction would be shocking.”
Id. (quotation marks omitted).
7
We review a district court’s ruling on the admissibility of expert testimony for abuse of
discretion. United States v. Douglas, 489 F.3d 1117, 1124 (11th Cir. 2007), cert. denied, 128 S.
Ct. 1875 (2008).
8
Vann’s initial and renewed motion for a judgment of acquittal raised only a double
jeopardy argument as to Counts 1 and 2.
18
Possession with intent to distribute crack cocaine under 21 U.S.C. §
841(a)(1) is proven by evidence of “three elements: (1) knowledge; (2) possession;
and (3) intent to distribute.” United States v. Mercer, 541 F.3d 1070, 1076 (11th
Cir. 2008), cert. denied,
129 S. Ct. 954 (2009). “Intent to distribute can be proven
circumstantially from, among other things, the quantity of cocaine and the
existence of implements such as scales commonly used in connection with the
distribution of cocaine.” United States v. Poole,
878 F.2d 1389, 1392 (11th Cir.
1989); see also United States v. Wilson,
183 F.3d 1291, 1299 (11th Cir. 1999)
(holding that sufficient evidence supported a defendant’s conviction for possession
with intent to distribute where police found seven grams of crack cocaine, with a
street value of approximately $800, and a razor blade, “which drug dealers often
use to cut up rocks of crack cocaine they intend to distribute,” in the defendant’s
car, and there was evidence from which the jury reasonably could have concluded
that possessing $800 worth of crack cocaine was associated with being a dealer and
not a consumer).
Here, the amount of crack cocaine found in Vann’s apartment was almost 40
grams. Based on testimony that a gram of crack cocaine is equivalent to about
seven doses worth $10 each, the crack cocaine in Vann’s apartment was worth at
19
least $2,688 and would have produced at least 250 doses and perhaps as much as
400 doses.
Three witnesses testified that the amount of crack cocaine found in Vann’s
apartment indicated that he was a street-level drug dealer. Witnesses also testified
that they would not expect to find scales or documentation of drug sales in the
possession of a street-level dealer, but would expect to find a pipe in the possession
of a crack cocaine user. Officer Ferry and Detective Fernendes explained that
dealers use a razor blade, such as the one found during the search in a bag along
with several pieces of crack cocaine, to cut crack cocaine rocks into small pieces
for distribution. Detective Fernenedes also testified that the crack cocaine found in
Vann’s apartment was cut into the same shape as the rocks sold by street-level
dealers for $10 or $20 each. Detective Fernendes further testified that he had never
seen a crack cocaine user with a large amount of crack cocaine and that a typical
user would have at most seven to ten rocks. Finally, Officers Moral and Ferry both
testified that Vann admitted selling crack cocaine because he had no other income.
This is compelling evidence that Vann possessed the crack cocaine in his
apartment in order to sell it on the street. Vann points to the testimony of his ex-
girlfriend, Armstrong, who testified that over a year before Vann was arrested she
moved out of his apartment when she saw a small amount of crack cocaine and
20
learned that he was a crack user and to the lighter found with the razor blade. This
evidence of Vann’s personal use does little to undermine the ample evidence that,
at the time of the search, Vann was a street-level crack cocaine dealer.
Accordingly, we conclude that the evidence supporting a finding of an intent to
distribute was not so tenuous that Vann’s convictions on Counts 1 and 2 are
shocking. Indeed, even under a de novo standard of review, a reasonable jury
could have found beyond a reasonable doubt that Vann intended to distribute the
crack cocaine in his apartment.
E. Simple Possession Jury Instruction
Vann challenges the district court’s refusal to give his requested jury
instruction on the lesser-included offense of simple possession. However, Vann
did not make a written request for this instruction, as required by Federal Rule of
Criminal Procedure 30. See Fed. R. Crim. P. 30(a). Thus, the district court did not
abuse its discretion in refusing to give it. See United States v. Cunningham, 194
F.3d 1186, 1200 (11th Cir. 1999).9
Even if Vann had properly requested a simple possession instruction, his
argument would fail. “In the specific context of possession and distribution of
drugs, this circuit has held that where the factual issues are the same for both the
9
We review a district court’s refusal to give a proposed jury instruction for abuse of
discretion. United States v. Klopf, 423 F.3d 1228, 1241 (11th Cir. 2005).
21
lesser offense of possession and the greater offense of distribution, the instruction
on possession is not required.” United States v. Catchings, 922 F.2d 777, 780-81
(11th Cir. 1991). Here the factual issues for both offenses were the same. And, in
light of the overwhelming evidence of an intent to distribute, no rational jury could
have concluded that Vann possessed the crack cocaine only for his personal use.
III. CONCLUSION
For all the foregoing reasons, we find no reversible error and affirm Vann’s
convictions.
AFFIRMED.
22
