United States v. Cody , 94 F. App'x 972 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4781
KELVIN L. CODY,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Henry E. Hudson, District Judge.
(CR-03-97)
Submitted: March 31, 2004
Decided: April 20, 2004
Before WILKINSON, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
David Lassiter, Jr., JEFFERSON & LASSITER, Richmond, Virginia,
for Appellant. Paul J. McNulty, United States Attorney, Michael J.
Elston, Assistant United States Attorney, Shannon L. Taylor, Special
Assistant United States Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. CODY
OPINION
PER CURIAM:
A jury convicted Kelvin L. Cody on one count of conspiracy to dis-
tribute and possess with intent to distribute cocaine base ("crack")
(Count One), one count of possession with intent to distribute crack
(Count Two), one count of possession of crack (Count Three), and
one count of possession of marijuana (Count Four). The district court
sentenced Cody to a total of 150 months in prison. Cody timely
appealed, claiming that the evidence was insufficient to support his
convictions. We find that the evidence was sufficient to support
Cody’s convictions on all four counts; consequently, we affirm.
While investigating a report of a nearby crime, police officers
knocked on the door of a motel room. Bryan N. Tunstall opened the
door, and an officer smelled marijuana smoke emanating from the
room. Tunstall, Cody, and two other men were inside the room. Tuns-
tall stated that he and his friends had been smoking marijuana that
evening. In their search of the room, police found a small glass smok-
ing device of the type usually used for smoking crack, a baggie con-
taining a 6.925 gram rock of crack, and $1040 in cash in the night
stand between the two beds. Officers also found Cody’s social secur-
ity card, a child support document for Tunstall, a room key, and three
pay stubs belonging to Cody in the drawer of the night stand. An
additional $5400 in cash was found inside a sock in the dresser. Cody
told one of the officers that the cash belonged to him. Officers recov-
ered a razor blade wrapped in tissue on Cody’s person. A subsequent
laboratory analysis of the razor blade revealed no drug residue.
Finally, officers found a gun between the mattress and boxspring of
one of the two beds in the room.
A grand jury indicted Cody on the four counts on which he ulti-
mately was convicted, as well as on two other counts that were dis-
missed on the government’s motion. Tunstall agreed to cooperate
with the police and testified against Cody.
At Cody’s trial, Tunstall admitted that he was guilty of "renting an
occupied area where drugs were being stored or sold." His signed plea
agreement, which was part of the record, more explicitly provided
UNITED STATES v. CODY 3
that he agreed to plead guilty to "renting and making available for use
[a] room for the purpose of unlawfully manufacturing, storing, dis-
tributing, and using . . . ‘crack.’" Tunstall testified that he had rented
the motel room and that he shared the room with Cody, who also had
a key to the room. He said that Cody had shown him the rock of crack
earlier in the day and that he told Cody that he should not have the
crack in the motel room and that he thought Cody was going to get
rid of it. He admitted that, although he denied ownership of the crack
when the police discovered it, he did not tell them that it belonged to
Cody. He also admitted to selling cocaine, although he denied that he
and Cody sold drugs together on the date charged in the indictment.
Cody contends on appeal that the evidence was insufficient to sup-
port his convictions. A defendant challenging the sufficiency of the
evidence "bears a heavy burden." United States v. Beidler, 110 F.3d
1064, 1067 (4th Cir. 1997). This court considers whether, taking the
evidence in the light most favorable to the government, any reason-
able trier of fact could have found the defendant guilty beyond a rea-
sonable doubt. Glasser v. United States, 315 U.S. 60, 80 (1942). We
review both direct and circumstantial evidence and permit the govern-
ment "‘the benefit of all reasonable inferences from the facts proven
to those sought to be established.’" United States v. Jackson, 124 F.3d
607, 613 (4th Cir. 1997) (quoting United States v. Tresvant, 677 F.2d
1018, 1021 (4th Cir. 1982)). "In reviewing the sufficiency of the evi-
dence, we are not entitled to weigh the evidence or assess the credibil-
ity of witnesses, ‘but must assume that the jury resolved all
contradictions . . . in favor of the Government.’" United States v.
Romer, 148 F.3d 359, 364 (4th Cir. 1998) (quoting United States v.
United Med. & Surgical Supply Corp., 989 F.2d 1390, 1402 (4th Cir.
1993)).
Counts Three and Four charged Cody with possession of crack and
marijuana, respectively, in violation of 21 U.S.C. § 844 (2000). Sim-
ple possession of a controlled substance requires knowing or inten-
tional possession of that substance. 21 U.S.C. § 844.
The crack was found in a motel room Cody was sharing with Tuns-
tall and was in close proximity to documents belonging to Cody. Tun-
stall testified that the crack belonged to Cody. We find this evidence
was sufficient to support Cody’s conviction for possession of crack.
4 UNITED STATES v. CODY
Regarding the marijuana, Cody, Tunstall, and two other men were
found in a motel room that smelled of marijuana smoke and there
were marijuana blunts in the room. Tunstall stated that he and his
friends had been smoking marijuana. We find that the jury could rea-
sonably infer from this evidence that Cody had been in possession of
marijuana.
Count Two charged Cody with possession with intent to distribute
crack, in violation of 21 U.S.C.A. § 841 (West 1999 & Supp. 2003).
In order to establish a violation of § 841, the government must prove
beyond a reasonable doubt that the defendant: (1) knowingly; (2) pos-
sessed the controlled substance; (3) with the intent to distribute it.
United States v. Burgos, 94 F.3d 849, 873 (4th Cir. 1996) (en banc).
We find that the evidence was sufficient to establish that Cody
knowingly possessed the crack. Moreover, there was ample circum-
stantial evidence of drug trafficking. The jury could infer from the
quantity of crack found, Cody’s unexplained possession of a large
sum of cash, and the discovery of the hidden gun, that Cody was
engaged in drug distribution. United States v. Lamarr, 75 F.3d 964,
973 (4th Cir. 1996); see also United States v. Pike, 211 F.3d 385, 389
(7th Cir. 2000) (noting that firearms are known tools of the drug
trade). This inference was buttressed by the discovery of the razor
blade on Cody’s person. Although it contained no detectable drug res-
idue, an officer testified that razor blades are tools of the drug trade.
Viewing this circumstantial evidence in the light most favorable to the
government, we find that the evidence was sufficient to support
Cody’s conviction for possession of crack with intent to distribute.
Finally, Count One charged Cody with conspiracy to possess with
intent to distribute crack. To prove conspiracy to distribute a con-
trolled substance, the government must establish that: (1) two or more
persons agreed to distribute the substance; (2) the defendant knew of
the conspiracy; and (3) the defendant knowingly and voluntarily
became part of the conspiracy. Burgos, 94 F.3d at 857. Although Tun-
stall emphatically claimed that the crack seized from the motel room
was Cody’s and that he had nothing to do with it, the fact remains that
he admitted to making the motel room available for crack distribution
and that he was aware that Cody had crack in the room. He also
admitted to selling cocaine. We find that there was sufficient evidence
UNITED STATES v. CODY 5
to find a tacit agreement between Cody and Tunstall to distribute
crack, that Cody was aware of the conspiracy, and that he knowingly
and voluntarily joined it.
For these reasons, we affirm Cody’s convictions. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED