United States v. Nealy , 221 F. App'x 329 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit March 2, 2007
Charles R. Fulbruge III
Clerk
No. 05-50940
UNITED STATES OF AMERICA
Plaintiff - Appellee
VERSUS
BRYAN KEITH NEALY
Defendant - Appellant
Appeal from the United States District Court
For the Western District of Texas, Waco Division
W-05-CR-008
Before DAVIS and STEWART, Circuit Judges, and GODBEY*, District Judge.
PER CURIAM:**
Bryan Keith Nealy appeals his conviction for possession of
more than five grams of cocaine base with intent to distribute
within 1000 feet of a school in violation of 21 U.S.C. §§ 841(a)(1)
and 860(a). Finding sufficient evidence to support the jury’s
*
District Judge of the Northern District of Texas, sitting by designation.
**
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should not be published and is not precedent except under the limited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.
verdict, we affirm.
I.
On August 12, 2004, Officer Rankin of the Temple Police
Department, received information concerning the Appellant, Bryan
Keith Nealy (“Nealy”), who was wanted on an outstanding warrant.
According to the information, Nealy, an African American male, was
at the Wayman Manor Apartments in Temple, Texas, wearing a red and
white jersey type shirt and dark shorts. Officer Rankin gathered
several other officers to help arrest Nealy. When Officer Rankin
drove up to the parking lot of the apartment complex, he saw Nealy
standing near an apartment building. Officer Rankin contacted
Officer Bragg and advised him that Officer Bragg was walking toward
Nealy’s location.
When Nealy spotted Officer Bragg, he began running. Nealy ran
through the grounds of an elementary school, through yards in a
nearby neighborhood by jumping some fences, and finally came over
a fence into an open field. Another officer, Officer Schuler, was
then able to subdue Nealy. Other officers, including Officer
Rankin, arrived shortly after Nealy’s apprehension.
Officer Rankin conducted a pat down search of Nealy. During
that search, Officer Rankin found a white pill bottle. Officer
Rankin field tested the substance in the white pill bottle, which
tested positive for cocaine base. The substance was then sent to
the crime lab for analysis and was confirmed to be a substance
2
containing cocaine base, weighing 1.87 grams. Officer Rankin did
not find any weapons, money, or drug paraphernalia on Nealy’s
person.
Officer Rankin also found a piece of paper in Nealy’s pocket.
On one side of the paper were descriptions of cars, such as, “Green
Grand AM, 2002 Grand AM, tinted windows, black, a white Dodge, gold
SUV, Suburban . . .” In addition, there were descriptions of
persons next to the vehicle descriptions: “white chick, white dude,
black chick, white lady, male, white boy . . .” On the other side
of the paper, there appeared to be a ledger, which had numbers and
references to “zone.” Officer Rankin and Officer Kallus testified
that they thought the piece of paper related to drug transactions.
In addition to the white pill bottle found on Nealy’s person,
an orange pill bottle found in an elderly man’s backyard (in the
neighborhood through which Nealy was running) was attributed to
Nealy. Vollie Meyers (“Meyers”) witnessed an African American man
throw some items on the ground in his backyard. Meyers then went
to his backyard where he found the items.
Officer Kallus spoke with Meyers about what he saw in his
backyard and secured the two plastic baggies, cigar, and orange
pill bottle found in Meyers’s backyard. The two plastic baggies
contained marijuana. The substance from the orange pill bottle was
submitted to the lab for testing and tested positive for cocaine
base. The cocaine base weighed 3.14 grams, resulting in a total of
5.01 grams of cocaine base attributed to Nealy.
3
Nealy was indicted for intent to distribute five grams of
cocaine base within 1000 feet of a school, in violation of 21
U.S.C. §§ 841(a)(1) and 860(a). Nealy pleaded not guilty and was
tried and convicted before a jury. Nealy then filed a Rule 29
motion for judgment of acquittal stating that the evidence was
insufficient to sustain the conviction against him. The district
court denied his motion. This appeal followed.
II.
On appeal, Nealy argues that the evidence is insufficient to
support both possession of more than five grams of cocaine base and
intent to distribute. We review de novo the denial of a Rule 29
motion for judgment of acquittal, applying the same standard as in
a general review of the sufficiency of the evidence.1 In reviewing
the challenge to the sufficiency of the evidence in a criminal
case, we will affirm a conviction if a rational trier of fact could
have found that the evidence established the essential elements of
the offense beyond a reasonable doubt.2 We view all evidence in the
light most favorable to the prosecution and the verdict, accepting
all credibility choices and reasonable inferences made by the
jury.3 In conducting this review, we do not question the veracity
1
United States v. Burns, 162 F.3d 840, 847 (5th Cir. 1998).
2
See Jackson v. Virginia, 443 U.S. 307, 319 (1979).
3
United States v. Anderson, 174 F.3d 515, 522 (5th Cir. 1999).
4
of the government’s evidence.4 The evidence need not exclude every
reasonable hypothesis of innocence or be wholly inconsistent with
every conclusion except that of guilt, and the jury is free to
choose among reasonable constructions of the evidence.5 If,
however, the evidence gives equal or nearly equal circumstantial
support to a theory of guilt and to a theory of innocence, we will
reverse the conviction, as under these circumstances a reasonable
jury must necessarily entertain a reasonable doubt.6
To establish a violation of 21 U.S.C. §§ 841(a)(1) and 860(a),
the government must prove beyond a reasonable doubt that the
defendant (1) knowingly; (2) possessed cocaine; (3) with intent to
distribute it; and (4) within 1000 feet of a school.7 The elements
of the offense may be proven either by direct or circumstantial
evidence.8
A. Possession
Nealy argues that the evidence is insufficient to support the
allegation that he possessed the orange pill bottle containing 3.14
grams of cocaine base. Possession may be either actual or
4
United States v. Rojas Alvarez, 451 F.3d 320, 326 (5th Cir. 2006).
5
United States v. Hunt, 129 F.3d 739, 742 (5th Cir. 1997).
6
Id.7
See United States v. Kates, 174 F.3d 580, 582 (5th Cir. 1999); 21 U.S.C. §§
841(a) and 860(a).
8
Hunt, 129 F.3d at 742.
5
constructive and may be joint among several people.9 Constructive
possession is ownership, dominion, or control over the illegal
drugs, or over the premises where drugs are found.10
A reasonable jury could infer that Nealy possessed the 3.14
grams of cocaine base found in the orange pill bottle in Meyers’s
backyard. Meyers was watching television, and saw an African
American male run through his backyard and move his arm as if he
was throwing something down. Meyers testified that the orange pill
bottle did not belong to him, and he had been in his backyard
earlier that day and the items were not present. Meyers could not
identify the man who ran through his backyard, but testified that
the police were chasing him, and the man jumped the fence into his
neighbor’s backyard and continued jumping fences. Although no one
actually saw Nealy go into Meyers’s backyard, Nealy was running
through backyards in Meyers’s neighborhood, and was observed
jumping over a fence just two houses east of Meyers’s house moments
after Meyers found the items in his backyard. In addition, the
cocaine base discovered in Meyers’s backyard was in a pill bottle,
and the cocaine base found on Nealy’s person was also in a pill
bottle. As a result, there was sufficient evidence for the jury to
conclude that Nealy possessed the 3.14 grams of cocaine base in the
orange pill bottle.
9
United States v. Skipper, 74 F.3d 608, 611 (5th Cir. 1996).
10
United States v. Onick, 889 F.2d 1425, 1429 (5th Cir. 1989).
6
B. Intent to Distribute
Intent to distribute may be inferred solely from the
possession of a quantity of drugs too large to be used by the
defendant alone.11 However, a quantity that is consistent with
personal use does not, by itself, raise an inference of intent to
distribute such drugs.12 The presence of additional evidence, such
as drug distribution paraphernalia, guns, or large quantities of
cash or the value and quality of the substance, is necessary.13
Nealy possessed 5.01 grams of cocaine base. The government
introduced testimony indicating that this amount of drugs suggested
drug dealing. However, the testimony also indicated that this
quantity is not clearly inconsistent with personal use. As a
result, additional evidence is necessary to show intent to
distribute.14
The government has provided this additional evidence. The
government elicited testimony indicating that the piece of paper
found in Nealy’s pocket was a “drug ledger.” Specifically, Officer
Rankin testified that “zone” referred to an ounce of illegal
drugs.15 In explaining the ledger, Officer Rankin stated:
11
Kates, 174 F.3d at 582.
12
Id.13
See id.; Skipper, 74 F.3d at 611; Hunt, 129 F.3d at 743-44.
14
See Skipper, 74 F.3d at 611; Hunt, 129 F.3d at 742.
15
The following writing was found on one side of the note:
475 zone - 3 zones 1,425; 2625 - 1,200
7
And in the bottom right under that line is another line
that’s showing 375 zone. What it looks to be would be
what someone would be paying for an ounce of drugs on the
street, and then if you look over here it shows what he
would sell it for and then you have the balance over here
which I’m assuming would be his profit.
The Government also offered the testimony of Officer Kallus
who provided his expert opinion that the note is a drug ledger.
Officer Kallus, an officer with seventeen years of experience with
the Temple Police Department and six years of experience as a
narcotics interdiction officer, testified that, based on his
experience in dealing with drug ledgers and experience from
debriefings, the word “zone” was used in reference to cocaine,
cocaine base, and methamphetamine. According to Officer Kallus,
the paper found on Nealy with notes referring to “zones” and
numeric amounts were “drug notes,” detailing the amount each ounce
of cocaine costs, what it could be sold for, and how much profit
could be made from the sale of the cocaine. In addition, at the
time of Nealy’s arrest, cocaine was selling for approximately $350
to $500 per ounce, and Nealy’s paper showed “475 for a zone,” and
“375 for a zone.” Kallus also testified that, in his past
narcotics investigations, the descriptions of persons and
automobiles found on the other side of the paper were the types of
notes that would be kept by a street dealer if drugs had been sold
to someone who was unknown to him, and if that is an undercover
vehicle, the dealer will know when it shows up the next time.
375 zone - (9) qk 3,375 / 600 = 5400.
8
Nealy argues that this evidence is “highly speculative,” and
the evidence showed that the piece of paper could have been used in
referring to Nealy’s car detailing business.
Although Nealy is correct that “[a] verdict may not rest on
mere suspicion, speculation or conjecture, or an overly attenuated
piling of inference on inference,”16 the jury did not convict Nealy
on mere speculation. The jury was entitled to evaluate the
evidence provided by Officers Rankin and Kallus and make its own
conclusion. Here, the jury presumably drew the reasonable
inference that the piece of paper was a drug ledger prepared by
someone in the business of selling drugs for a profit. There was
no plausible evidence negating the government’s argument that the
note found in Nealy’s pocket was a drug ledger. Although on cross-
examination government testimony indicated that it was “possible”
that the list of vehicles and descriptions of individuals represent
cars that Nealy had detailed and the owners of those cars, the
balance of the writing was left unexplained. In addition, Officer
Kallus stuck to his opinion that the paper was a drug note. As a
result, making all credibility determinations in favor of the
jury’s verdict, the evidence supports a finding that, in addition
to the quantity of cocaine base possessed by Nealy, Nealy also
carried with him a drug ledger that one engaged in selling drugs
would use.
16
United States v. Pettigrew, 77 F.3d 1500, 1521 (5th Cir. 1996).
9
Viewing the evidence in the light most favorable to the
verdict, we are satisfied that a rational trier of fact could
reasonably find that Nealy possessed with an intent to distribute
more than five grams of cocaine base within 1000 feet of a school.17
III.
For the reasons stated, we AFFIRM Nealy’s conviction.
17
Nealy does not dispute that he was within 1000 feet of a school.
10