United States v. Wright , 412 F. App'x 54 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
January 3, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-3337
(D.C. No. 2:09-CR-20035-KHV-1)
KEITH R. WRIGHT, (D. Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before KELLY and BALDOCK, Circuit Judges, and BRORBY, Senior
Circuit Judge.
Keith R. Wright was convicted by a jury of one count of possession with
intent to distribute five grams or more of cocaine base (“crack cocaine”) in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii), 1 and one count of possession
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
Effective August 3, 2010, the quantity in this section was amended from
five grams to twenty-eight grams. See Fair Sentencing Act of 2010,
Pub. L. No. 111-220, § 2(a)(2), 124 Stat. 2372, 2372. Mr. Wright’s offense
(continued...)
of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A). He was sentenced to a term of imprisonment of 180 months. He
appeals his convictions, arguing that the evidence was insufficient. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
I
In February 2009, Kansas City, Kansas, Police Department (KPD) officers
observed Mr. Wright make an illegal U-turn in an area where drug-house
surveillance operations were underway. A chase ensued. Mr. Wright’s car hit a
curb, flattened a tire, and became disabled. The patrol car came to a stop at an
angle just behind the driver’s door, and the officer driving the patrol car, Jason
Pittman, observed the driver’s side window of Mr. Wright’s car go down and a
clear plastic baggie come out of the window. Mr. Wright’s brother, Debroski
Wright, emerged from the passenger side door and ran. While Officer Pittman
apprehended Mr. Wright, his partner, Scotty Hammons, gave chase and caught
Debroski. During the pursuit, Officer Hammons saw Debroski throw a handgun
on the ground, which was later recovered. Another officer arriving on the scene
apprehended a third person, who was in the back seat. Neither Officer Pittman
nor Officer Hammons had observed the third person until the car became
disabled.
1
(...continued)
occurred in February 2009 and is controlled by the prior version of the statute.
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Officer Pittman recovered the baggie he saw thrown from the driver’s
window, which contained a large number of smaller bags each containing a white
rock-like substance Officer Pittman suspected was crack cocaine. A search of
Mr. Wright uncovered no other drugs, no drug paraphernalia, no cash, and no
weapons. Deputy Sheriff Keith Denny searched Debroski at the county jail and
found a plastic baggie in his sock containing eight individual baggies of a white
rock-like substance.
Analysis of the baggie that came out of the driver’s window of
Mr. Wright’s car showed it contained 17.8 grams of a substance containing crack
cocaine individually packaged in many smaller baggies. Analysis of the eight
baggies in Debroski’s possession showed they contained a total of 1.6 grams of a
substance containing crack cocaine.
After he was tried and convicted, Mr. Wright filed a motion for judgment
of acquittal and a new trial. The district court overruled the motion. Mr. Wright
appeals.
II
On appeal, Mr. Wright argues there was insufficient evidence that he
(1) possessed crack cocaine, (2) possessed crack cocaine with the intent to
distribute, (3) possessed five grams or more of crack cocaine, and (4) possessed a
firearm. We review challenges to the sufficiency of the evidence de novo,
viewing the evidence and drawing all reasonable inferences in favor of the jury’s
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verdict. United States v. Wright, 506 F.3d 1293, 1297 (10th Cir. 2007). A
conviction may be reversed only if “no reasonable juror could have reached the
disputed verdict.” United States v. Carter, 130 F.3d 1432, 1439 (10th Cir. 1997).
Mr. Wright first argues that the fact the arresting officers were not aware of
the presence of the back-seat passenger until the car became disabled should have
created reasonable doubt in the minds of the jurors as to whether Mr. Wright
threw the baggie out the window. We disagree. Officer Pittman testified he saw
the baggie come out of the driver’s side window, not the rear passenger’s
window. And Officer Hammons testified that “the driver threw something out the
driver’s window.” App. Vol. 2 at 118. Thus, there was sufficient evidence for
the jury to find beyond a reasonable doubt that it was Mr. Wright who threw the
baggie out the driver’s side window.
Mr. Wright next contends that the government failed to prove possession
with the intent to distribute because a heavy crack user could smoke more than
17.8 grams in twenty-four hours, and the individual packaging of smaller
quantities was the form in which a user would obtain crack from a dealer.
Further, he insists that if he were dealing, he would have had cash in his
possession. We again disagree. Intent to distribute may be inferred from
circumstantial evidence, including a large drug quantity. United States v. Gay,
774 F.2d 368, 372 (10th Cir. 1985). The government presented Patrick Greeno, a
KPD detective with lengthy experience in narcotics investigations, who testified
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that the quantity of crack in this case was consistent with distribution. According
to Detective Greeno, a crack user would typically purchase and have in his
possession only one or two “rocks” (i.e., 0.2 grams, which is twenty dollars’
worth), not 17.8 grams divided into many separately packaged rocks. He also
testified that crack for sale is typically packaged in such smaller bags. He further
stated that users normally have some sort of device to smoke crack, but no such
devices were recovered during Mr. Wright’s arrest. Detective Greeno also
testified that crack dealers often work in concert and, like Mr. Wright, have little
or no cash on them in order to avoid forfeiting it if caught. Thus, we conclude
there was sufficient circumstantial evidence that Mr. Wright possessed crack
cocaine with the intent to distribute it.
With respect to whether he possessed five grams or more of crack cocaine,
Mr. Wright argues that the testing method was flawed. The chemist testified that
he first combined the contents of all the smaller baggies contained in the
17.8-gram baggie in order to get a net weight, then tested a small sample (four
milligrams) from the combined lump sum. Using the same technique, the chemist
tested a three-milligram sample from the eight baggies found in Debroski’s
possession. Mr. Wright contends the chemist’s failure to test each of the smaller
bags rendered the evidence as to drug quantity insufficient for the jury to convict
him of possession of five or more grams of crack cocaine.
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This argument fails. Sampling in the manner used by the chemist is an
acceptable method of testing provided there is sufficient evidence that the entire
quantity is the same substance. See United States v. Booker, 576 F.3d 506, 512
(8th Cir.) (evidence of quantity sufficient where criminalist tested 29 of 43 rocks
seized from defendant and testified he believed remaining rocks were also crack
cocaine, and where an arresting officer with narcotics experience field-tested the
seized substance and determined it was comprised of 43 rocks of crack cocaine),
cert. denied, 130 S. Ct. 777 (2009); United States v. Tran, 519 F.3d 98, 106
(2d Cir. 2008) (evidence of chemist’s random testing of 29 pills from each of
three bags containing thousands of pills of similar appearance sufficient to prove
drug quantity); Gibson v. Bowersox, 78 F.3d 372, 374 (8th Cir. 1996) (holding
that random testing of pieces of similar texture and color is sufficient to prove
drug-quantity element of offense); United States v. Maceo, 873 F.2d 1, 6-7
(1st Cir. 1989) (evidence of quantity sufficient where chemist tested 16 of 227
identical vials and used positive results to determine total amount of crack
cocaine in all vials). There is no suggestion in the record that the individually
packaged substances were dissimilar in any manner. To the contrary, there was
sufficient evidence that the smaller quantities were similarly packaged and similar
in appearance. Although the chemist was not asked if he thought all the
individually packaged substances were crack cocaine, cf. Booker, 576 F.3d at 512,
Officer Pittman testified as to his extensive experience in narcotics matters and
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stated his opinion that the baggie Mr. Wright threw out the window contained
smaller baggies of crack cocaine. He also stated the substance field-tested
positively for crack cocaine. Similarly, Deputy Kenny testified that the eight
smaller baggies recovered from Debroski each contained a white rock-like
substance, the term typically used by law enforcement officers to refer to
suspected crack cocaine. Given Detective Greeno’s testimony regarding drug
dealers often working in concert, Deputy Kenny’s testimony further supported a
reasonable inference that all the smaller bags in the bag Mr. Wright threw from
his car contained crack cocaine. Furthermore, the smaller baggies were similar
and combined together in a larger baggie, suggesting identity of contents. We
therefore conclude the evidence was sufficient for the jury to find that Mr. Wright
was in possession of five grams or more of a substance containing crack cocaine.
Finally, Mr. Wright challenges the sufficiency of the evidence to support
his conviction on possession of a firearm in connection with a drug trafficking
offense. The government’s theory was that Mr. Wright and Debroski were
working in concert to sell crack cocaine, and that Mr. Wright constructively
possessed the handgun his brother dropped during the foot chase. Constructive
possession of a firearm may be found in a “joint occupancy” case if “the
government demonstrates some connection or nexus between the defendant and
the firearm.” United States v. Avery, 295 F.3d 1158, 1177 (10th Cir. 2002)
(quotation omitted). Constructive possession may be established by
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circumstantial evidence. Id. There must be “some evidence supporting at least a
plausible inference that the defendant had knowledge of and access to the
weapon.” United States v. Taylor, 113 F.3d 1136, 1145 (10th Cir. 1997)
(quotation omitted). Here, the brothers jointly occupied Mr. Wright’s car, there
was adequate circumstantial evidence that they were dealing crack together, and
there was testimony that crack dealers often carry firearms for protection.
Moreover, Mr. Wright testified at his trial that he knew Debroski owned a gun,
but he denied knowing that his brother had the gun in his possession at the time of
their arrest. The jury was free to find Mr. Wright not credible and, apparently,
did so. Thus, the evidence was sufficient to show a connection between
Mr. Wright and the firearm, and to support a plausible inference that Mr. Wright
had knowledge of and access to the firearm.
The judgment of the district court is AFFIRMED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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