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The Honorable Susan Webber Wright, Chief Judge, United States District

Court for the Eastern District of Arkansas.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 04-3237

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United States of America, *

*

 Appellee, *

* Appeal From the United States

v. * District Court for the

* Eastern District of Arkansas.

Demario A. Howard, *

*

Appellant. *

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Submitted: September 21, 2005

Filed: October 31, 2005

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Before MURPHY, HEANEY, and MELLOY, Circuit Judges.

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HEANEY, Circuit Judge.

Following a jury trial, Demario A. Howard was convicted of one count of

possession with intent to distribute a controlled substance (marijuana), one count of

attempted possession with intent to distribute a controlled substance (marijuana), and

one count of brandishing a firearm in furtherance of a drug trafficking crime.

Howard’s argument on appeal is that the evidence was insufficient to support his

convictions, and thus the district court1

 erred in denying his motion for acquittal. We

affirm.
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BACKGROUND

On December 6, 2002, Jo Ann Howard called Roto Rooter to work on a clogged

sewer drain at the house she shared with her son, Demario, in Little Rock, Arkansas.

Ricky Lee Green, a Roto Rooter employee, arrived at the Howard residence to do the

job. The sewer drain was in the crawlspace, which was secured with a door and

padlock. When Green opened the door to the crawlspace, he smelled an

overwhelming odor of marijuana. He surveyed the crawlspace and found a green

duffel bag containing a large amount of marijuana.

Green called his supervisor, Michael Smart, and told Smart about what he had

discovered. Smart and Green decided at that time to remove some of the marijuana

from the duffel bag, so Green took two one-gallon bags filled with marijuana from the

duffel bag. Later, the two returned to the Howard residence under the guise of

retrieving a flashlight from the crawlspace, and stole the duffel bag and its remaining

contents. They later inventoried the contents of the bag, which included three

additional gallon-size bags filled with marijuana, a digital scale, and approximately

$17,000 in cash. Smart and Green sold the marijuana to an associate and split the

money.

Subsequently, Roto Rooter received telephone calls from Howard

impersonating a police officer, and claiming to be investigating property theft from

Howard's residence. He requested the name and telephone number of employees who

performed the plumbing work at that address, and was provided with Smart’s

telephone number. Howard then called Smart, again pretending to be an officer

investigating a theft. Shortly thereafter, and this time not under the pretense of any

authority, Howard called Smart back and told Smart that he knew Smart and Green

had taken his money and marijuana. Smart denied any knowledge of the matter, and

told Howard he would speak with Green about it. Howard gave Smart his telephone

number so that Smart could return the call. Apparently rattled by Howard, Smart
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According to Smart’s testimony, Howard said to the caller, “What do you mean

I need to get out of here?” About the time of this telephone call, agents observed a

vehicle circling the Denny’s parking lot, and opined that the vehicle was conducting

counter-surveillance. The vehicle was never found.

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contacted the Drug Enforcement Administration (DEA). The DEA decided to set up

a “reverse sting,” in which Howard would meet Smart to retrieve his money and drugs

under observation of DEA agents, so that the agents could then apprehend Howard.

Smart and Howard settled on a meeting at Denny’s, where Smart was to give

Howard the key to the trunk of a car that was supposed to contain the drugs and

money. Howard arrived at the Denny’s and asked Smart to accompany him to the

bathroom so that Howard could check for a wire. Smart refused. Howard then

received a call on his cellular phone which seemed to indicate he should leave

Denny’s.2

 Instead of leaving, Howard ended his phone call, and pulled up his

sweatshirt to reveal a handgun held in his pants. When Smart asked Howard why he

brought a gun, Howard told him it was for protection. Howard then took the key and

left the restaurant to get the duffel bag from the trunk. When Howard tried to open

the trunk, a Little Rock narcotics detective, Vincent Lucio, identified himself and

ordered Howard to the ground. Howard fled until he was tackled by DEA Agent

Colin Hill. When agents retraced Howard’s path, they found a pager, his cellular

phone, and a gun registered to him. Howard was wearing a bulletproof vest at the

time of his arrest.

On June 4, 2003, Howard was charged in district court with the offenses of

possession with intent to distribute marijuana, in violation of 18 U.S.C. § 841(a)(1);

attempted possession with intent to distribute marijuana, in violation of 18 U.S.C. §§

841(a)(1) and 846; and brandishing a firearm in relation to a drug trafficking crime,

in violation of 18 U.S.C. § 924(c)(1)(A). He went to trial on March 8, 2004, and

following two days of testimony, the jury returned guilty verdicts on all counts.

Howard was sentenced to concurrent terms of fifteen months of imprisonment on each
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of the drug convictions, and a mandatory consecutive term of eighty-four months for

the gun crime, pursuant to 18 U.S.C. § 924(c)(1)(A)(ii). This appeal followed.

ANALYSIS

Howard attacks the sufficiency of the evidence on each count. In considering

the sufficiency of the evidence to support a conviction, we view the evidence in the

light most favorable to the government, granting it all reasonable inferences supported

by the evidence. United States v. Mack, 343 F.3d 929, 933 (8th Cir. 2003). We may

only reverse the district court’s denial of a defendant’s motion for acquittal if

reasonably minded jurors must have harbored a doubt regarding an essential element

of the charged offense. United States v. Espinosa, 300 F.3d 981, 983 (8th Cir. 2002).

To convict Howard of possession of marijuana with intent to distribute, the

government was required to prove two elements: that Howard knowingly possessed

marijuana, and that he had the intent to distribute it. 21 U.S.C. § 841(a)(1); United

States v. Barrow, 287 F.3d 733, 736 (8th Cir. 2002). “Possession of drugs may be

demonstrated by evidence of either actual or constructive possession.” United States

v. Chauncey, 420 F.3d 864, 872 (8th Cir. 2005). Constructive possession “requires

knowledge of an object, the ability to control it, and the intent to do so.” United States

v. Lee, 356 F.3d 831, 837 (8th Cir. 2003).

The evidence in support of Howard’s conviction for possession with intent to

distribute consisted of testimony from both Ricky Green and Michael Smart indicating

that they had come upon a large duffel bag filled with marijuana while performing

plumbing work in a crawlspace under Howard’s house. Although there was no direct

evidence personally linking Howard to the duffel bag, it was under his house, and he

admitted he regularly kept property in the locked crawlspace. Moreover, Smart

testified that Howard had called him seeking return of the money and marijuana Smart

had stolen from the bag. Thus, in our view, a jury could reasonably find Howard to
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be in constructive possession of the bag on or about December 6, 2002, the day Green

and Smart stole it. 

The government also presented expert testimony from Arkansas State Police

Officer Don Sanders, who stated that the amount of drugs involved–enough to fill five

one-gallon baggies–was more than a personal use amount and was consistent with

distribution. This officer further testified that items in the duffel bag, such as the

digital scale and the large amount of cash, and items Howard admitted he owned, such

as his gun and his bulletproof vest, were common tools of the drug trade. Thus, we

find no error in the jury’s determination that Howard possessed marijuana on or about

December 6, 2002, with the intent to distribute.

Howard was also convicted of attempted possession of marijuana with the

intent to distribute. In order to sustain this conviction, there must be proof that

Howard intended to possess marijuana with the further intent to distribute it, and that

Howard took a substantial step toward that end. See United States v. Beltz, 385 F.3d

1158, 1162 (8th Cir. 2004) (explaining the elements of an attempted controlled

substance violation). Howard’s conviction on this charge is supported by the evidence

surrounding his December 10, 2002 endeavor to retrieve the contents of his duffel bag

from Smart during the reverse sting. Smart led Howard to believe that he would

return a portion of drugs and money to Howard. Howard brought a gun and wore a

bulletproof vest to that meeting. Thus, the jury’s determination that Howard

attempted to regain possession of marijuana with the intent to distribute it is not an

unreasonable one.

Lastly, Howard attacks his conviction for brandishing a firearm in furtherance

of a drug crime, in violation of 18 U.S.C. § 924(c)(1)(A). The government asserts that

Howard was properly convicted of this offense because Howard pulled up his shirt

with the intent to show Smart his gun during Howard’s attempt to retrieve the contents

of the duffel bag. Howard responds that: (1) he was not guilty of the underlying drug
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Neither Smart nor Green appear to have been charged with any crime resulting

from their theft of Howard’s property or the possession or sale of the marijuana.

Although at trial the Assistant United States Attorney intimated that neither had been

granted immunity from prosecution and may be later charged, nothing indicates that

either has been held to answer for their violations of the law. 

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offense and therefore cannot be guilty of brandishing a firearm in furtherance of it;

and (2) Smart was not a credible witness. His first contention is without merit, and

his second would require us to undertake a credibility determination, which is

typically a matter reserved for the factfinder. United States v. Shelton, 36 F.3d 52, 53

(8th Cir. 1994) (per curiam). Thus, we find no basis for reversal of this conviction.

CONCLUSION

To accept Howard’s appellate argument that the evidence was insufficient to

convict him of any of the charged offenses, this court would necessarily engage in

weighing and evaluating the credibility of the government’s witnesses vis-a-vis his

own testimony. This is typically beyond the scope of our review when considering

the denial of a motion for acquittal, and we thus affirm the district court.3

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