United States v. James Leonard Carter, Jr. , 284 F. App'x 751 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 07, 2008
No. 07-15090 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00077-CR-FTM-29-DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES LEONARD CARTER, JR.,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(July 7, 2008)
Before BIRCH, DUBINA and MARCUS, Circuit Judges.
PER CURIAM:
James Leonard Carter, Jr., appeals from his convictions for possession with
the intent to distribute crack cocaine, in violation of 21 U.S.C. § 841 (a)(1),
(b)(1)(B)(iii), and possession with the intent to distribute cocaine, in violation of
21 U.S.C. § 841(a)(1), (b)(1)(C). On appeal, Carter argues that the evidence was
insufficient to prove beyond a reasonable doubt that he was guilty of these offenses
because the testimony of two detectives with the Glades County Sheriff’s Office,
was contrary to his own testimony, and because the evidence was not sufficient to
connect him with the tan duffle bag, where the drugs were found. After careful
review, we affirm.
When, as here, a defendant fails to move for a judgment of acquittal after all
the evidence has been presented, reversal of the conviction is appropriate only to
prevent “a manifest miscarriage of justice.” United States v. Bender, 290 F.3d
1279, 1284 (11th Cir. 2002). Under this standard, the evidence on a key element
of the offense must be “so tenuous that a conviction would be shocking.” Id. We
cannot review jury determinations as to the credibility of witness testimony unless
such testimony is “incredible as a matter of law.” United States v. Chastain, 198
F.3d 1338, 1351 (11th Cir. 1999) (citation omitted). Testimony is incredible as a
matter of law only if it is “unbelievable on its face” and relates to “facts that the
witness physically could not have possibly observed or events that could not have
occurred under the laws of nature.” United States v. Calderon, 127 F.3d 1314,
1325 (11th Cir. 1997) (internal quotations, alterations and citation omitted).
2
The relevant facts are these. At the trial, Michael Pepitone and Steve Harris,
Glades County Sheriff’s Office detectives, testified that they pulled over a silver
Chrysler for violating the Florida “Move Over Act.” Detective Pepitone testified
that three people were in the Chrysler, and Carter was seated in the middle of the
back seat. Both detectives testified that they smelled marijuana coming from the
Chrysler. According to Detective Pepitone, after Detective Harris’s canine made a
positive alert to the car, Pepitone searched the three bags in the back seat -- two
were small suitcases, and the third was a tan gym duffle bag to the right of Carter.
Detective Pepitone testified that he found in the tan duffle bag thirteen small
pink-colored baggies that contained 5.9 grams of cocaine, a hardcover Bible
inscribed to “James and Roquesa,” and personal clothing. He also found in the
duffle a sneaker box labeled for black Nike Air Jordans that contained a large clear
ziploc baggie of a plate, a small measuring spoon, and a razor blade, all with
cocaine residue; a pharmaceutical pill bottle of crack cocaine pieces totaling 7.1
grams; another pill bottle with 11 grams of cocaine; a large baggie of marijuana;
three pairs of scissors; two digital scales; and another set of plastic bags containing
many small bags that displayed an Apple icon, which Detective Pepitone testified
are commonly used to package drugs. Detective Harris testified that while
Detective Pepitone searched the duffle bag, Harris observed Carter putting his head
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down “in a negative motion” and shaking his head in a “defeated fashion,” and that
neither of the other passengers had any physical reaction to the search. Detective
Harris also testified that Carter would not claim ownership of the tan duffle bag.
Neither the tan duffle bag nor the items inside were analyzed for fingerprints.
Both detectives also testified that they recalled Carter wearing Nike Air
Jordans, but could not remember the color of the shoes. Detective Pepitone further
testified that neither of the other two passengers were wearing Nike Air Jordans.
Carter testified on his own behalf. Carter admitted that the Bible was his,
but denied that the Bible was inside the tan duffle bag, and denied ownership of the
tan duffle bag and its contents.1 According to Carter, Detective Pepitone stated
that the drugs belonged to Carter even before he opened the box in the duffle bag,
and charged Carter with all of the drugs because Carter was the only person in the
car who had gold teeth and for his refusal to stop talking. Carter also testified that
the shoes he was wearing when arrested were mostly blue with black trim, and that
another passenger in the car also was wearing Nike Air Jordans. After Carter
testified, he rested his case and did not move for judgment of acquittal.
1
Roquesa Whiley, Carter’s girlfriend, testified that she gave and inscribed to Carter the
Bible found in the car. Whiley did not know if the tan duffle bag belonged to Carter, but she
never knew Carter to own a tan duffle bag. Whiley never saw Carter carrying a black Nike box.
4
The government recalled Detectives Pepitone and Harris as rebuttal
witnesses. According to Detective Pepitone, the only conversation he had with
Carter was at the beginning of the traffic stop when he requested Carter’s
identification. Both detectives testified that Carter was not talkative.
In order to convict a defendant of possession with intent to distribute, the
government must prove beyond a reasonable doubt that the defendant
(1) knowingly and intentionally (2) possessed a controlled substance (3) with intent
to distribute it. 21 U.S.C. § 841(a)(1); United States v. Poole, 878 F.2d 1389, 1391
(11th Cir. 1989). These elements may be proved by circumstantial evidence.
Poole, 878 F.2d at 1391-92. “A defendant has actual possession of a substance
when he has direct physical control over the contraband.” United States v.
Edwards, 166 F.3d 1362, 1363 (11th Cir. 1999). Constructive possession exists
when a defendant (1) “has knowledge of the thing possessed coupled with the
ability to maintain control over it or reduce it to his physical possession even
though he does not have actual personal dominion,” or (2) has “ownership,
dominion, or control over the contraband itself or dominion or control over the
premises or the vehicle in which the contraband was concealed.” United States v.
Derose, 74 F.3d 1177, 1185 (11th Cir. 1996).
5
Under these standards, we require some nexus between the defendant and
the contraband, and a defendant to have knowledge of the substance’s existence to
exercise control or dominion over it. Holmes v. Kucynda, 321 F.3d 1069, 1080
(11th Cir. 2003) (42 U.S.C. § 1983 context). Evidence of a “consciousness of
guilt,” such as nervousness, inconsistent statements or stories, and anxiousness
regarding the search, is sufficient for a jury to infer a defendant’s knowledge of the
controlled substances found in a car. United States v. Stanley, 24 F.3d 1314, 1320-
21 & n.50 (11th Cir. 1994). Moreover, to establish possession, the government
must show that the defendant was more than merely present in the car which he
knew contained contraband. United States v. Leonard, 138 F.3d 906, 909 (11th
Cir. 1998) (“[M]erely sharing a vehicle in which one knows cocaine and a gun are
hidden does not amount to possession . . . .”).
The intent to distribute may be inferred from the amount of drugs involved.
United States v. Hernandez, 433 F.3d 1328, 1333 (11th Cir. 2005) (citation
omitted). Intent to distribute can also be proven circumstantially from, among
other things, the quantity of cocaine and existence of implements such as scales
commonly used in connection with cocaine distribution. Poole, 878 F.2d at 1392.
Here, a reasonable trier of fact could conclude that the evidence established
beyond a reasonable doubt that Carter had knowing possession of the drugs in the
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tan duffle bag. There is no dispute that drugs were found in the tan duffle bag. In
addition, the jury could reasonably infer knowledge of the drugs through Carter’s
“consciousness of guilt,” Stanley, 24 F.3d at 1320, when Detective Harris observed
Carter putting his head down “in a negative motion” and shaking his head in a
“defeated fashion,” while Detective Pepitone searched the tan duffle bag. Further,
Carter exercised dominion and control of the tan duffle bag, as his Bible was in the
bag, and he was wearing the same brand of shoe as shown on the shoe box found in
the bag.2 Thus, unlike Leonard, 138 F.3d at 907-09, where this Court held that the
jury could not have inferred that Leonard knew the cocaine and gun were in the car
or that he ever had ownership, dominion, or control over them, the jury in this case
considered much more than Carter’s mere guilt by association. Accordingly, the
government’s evidence was sufficient to support a conclusion that the tan duffle
bag and the items inside belonged to Carter.
The jury could also reasonably infer intent to distribute cocaine and crack
cocaine from the amount of drugs seized, along with the implements including
digital scales, razor blades, a measuring spoon, a plate, and bags displaying an
Apple icon, found in the tan duffle bag. Hernandez, 433 F.3d at 1337; United
2
Although Carter testified that his Bible was not in the tan duffle bag and that another
passenger was wearing Air Jordans, the testimony of Detectives Pepitone and Harris to the
contrary was not “incredible as a matter of law.” Chastain, 198 F.3d at 1351. As a result, we
cannot review their credibility. Id.
7
States v. Wilson, 183 F.3d 1291, 1299 (11th Cir. 1999); Poole, 878 F.2d at 1392.
Moreover, in light of the drug distribution-related implements and the amount of
drugs -- 16.9 grams of cocaine and 7.1 grams of crack cocaine -- found here, this
case is distinguishable from Turner v. United States, 396 U.S. 398, 423 (1970),
where the Supreme Court reversed Turner’s convictions for possession with intent
to distribute cocaine where the defendant only had “14.68 grams of a cocaine and
sugar mixture.”3 Thus, the evidence here was sufficient to prove intent to
distribute both cocaine and crack cocaine.
In short, Carter, who failed to move for a judgment of acquittal at the close
of all of the evidence, has not demonstrated that the evidence relating to a key
element of either charged offense was so tenuous that his conviction would be
considered shocking. Bender, 290 F.3d at 1284. For these reasons, we affirm
Carter’s convictions.
AFFIRMED.
3
Indeed, in United States v. Robinson, 870 F.2d 612, 613 (11th Cir. 1989), this Court
held that crack cocaine represented a more potent form of the drug and therefore, a jury could
infer intent to distribute from a lesser quantity than it would for cocaine offenses.
8