UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 92-4822

Summary Calendar

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MATEEN YUSUF SHABAZZ, a/k/a

EDWARD L. EBERHART, a/k/a

EDWARD WALLACE, and

KEITH LAMAR PARKER,

Defendants-Appellants.

______________________________________________

Appeal from the United States District Court for the

Eastern District of Texas

______________________________________________

(June 4, 1993)

( )

Before GARWOOD, JONES and EMILIO M. GARZA, Circuit Judges.

GARWOOD, Circuit Judge:

Defendants-appellants Mateen Yusuf Shabazz (Shabazz) and Keith

Lamar Parker (Parker) were convicted on drug possession charges.

They argue that evidence discovered in a warrantless search of the

car in which they were traveling should have been suppressed, that

the trial court erroneously failed to submit a "mere presence" jury

instruction, and that their convictions rest on insufficient

evidence. We affirm.
2

Facts and Proceedings Below

On July 10, 1991, Shabazz and Parker were traveling in a 1976

Chevrolet Malibu on Interstate 10 in Beaumont, Texas, when they

were pulled over by two officers of the Beaumont Police Department

for exceeding the speed limit. Officer Gerald LaChance approached

Shabazz, who had been driving the car, and asked him to step to the

rear of the vehicle with his driver's license. Shabazz complied

and produced what turned out to be a false driver's license bearing

the name Edward (or Edwin) L. Wallace. Parker remained in the

vehicle. While running a computer check on Shabazz's license, the

officers questioned Shabazz and Parker individually. Comparing

notes, the police officers determined that Shabazz and Parker had

given conflicting answers concerning their recent whereabouts.

Shabazz had said that he and Parker had been visiting Parker's

sister in Houston, where they had been for a week, since the Fourth

of July. Parker, on the other hand, had said that they had only

been in Houston since the eighth, just two days prior to the stop.

Based upon the conflict in their stories, and Officer Froman's

belief that Parker seemed nervous, the officers decided to seek

consent to search the car. Because Parker had represented himself

as the owner of the car, he was asked if he would consent to a

search of the vehicle. Parker gave both written and oral consent

to a search. 

During the search, Officer LaChance discovered a Phillips-head

screwdriver on the front floorboard of the driver's side of the

car. He also observed that the screws in the front driver's side

air conditioner vent had shiny nicks on them and appeared to be
1 The government initially challenged the standing of Shabazz,

who was driving the car but made no claim to be its owner, to

3

loose. Using the screwdriver, Officer LaChance loosened the

screws. The vent thereupon fell open and out of it tumbled a

number of plastic baggies, which contained over 300 grams of crack

cocaine and over 100 grams of powder cocaine. Shabazz and Parker

were immediately arrested. 

A grand jury returned a two-count indictment against Shabazz

and Parker charging them with possession with intent to distribute

cocaine and possession with intent to distribute a cocaine mixture

and substance containing cocaine base, in violation of 21 U.S.C. §

841(a). A jury trial was held in the Eastern District of Texas and

defendants were convicted on both counts. The court sentenced

Parker to 216 months' imprisonment, to be followed by 5 years of

supervised release, and a $100 special assessment. Shabazz

received a 192 month sentence, 5 years of supervised release, and

a $100 special assessment. Parker and Shabazz now appeal their

convictions. 

Discussion

Appellants raise three arguments on appeal. They argue that

the trial court erred by failing to suppress the evidence found in

the search of the automobile, that the court erred by failing to

give the jury a "mere presence" instruction, and that the evidence

was insufficient to prove that they knowingly possessed the

cocaine. We will address these issues in turn.

I. Suppression of Evidence

Prior to trial, appellants1 moved to suppress the evidence
challenge the search as violative of the Fourth Amendment. The

district court ruled that Shabazz had the requisite standing. As

the government does not raise the issue of standing on appeal,

and in light of our affirmance of the district court's denial of

the motion to suppress, we do not address the district court's

ruling in this respect. Cf. Rakas v. Illinois, 99 S.Ct. 421

(1978) (passengers in a car driven by its owner did not have

standing to raise the Fourth Amendment); United States v. Lee,

898 F.2d 1034 (5th Cir. 1990), cert. denied, 113 S.Ct. 1057

(1993) (driver of and passenger in a truck rented by a third

party and being operated at third party's behest have standing to

raise the Fourth Amendment). 

4

found in the search of the automobile as the fruits of a Fourth

Amendment violation. Following an evidentiary hearing, the

district court denied the motion. On appeal, we review the

district court's findings of fact for clear error; conclusions of

law are examined de novo. See United States v. Coleman, 969 F.2d

126, 129 (5th Cir. 1992). The evidence is viewed most favorably to

the party prevailing below, except where such a view is

inconsistent with the trial court's findings or is clearly

erroneous considering the evidence as a whole. Id. See also

United States v. Maldonado, 735 F.2d 809, 814 (5th Cir. 1984).

The Fourth Amendment prohibits unreasonable searches and

seizures. There is no question but that the stopping of a vehicle

and the detention of its occupants is a "seizure" within the

meaning of the Fourth Amendment. See Delaware v. Prouse, 99 S.Ct.

1391, 1396 (1979). It is clear that, as in the case of

pedestrians, searches and seizures of motorists who are merely

suspected of criminal activity are to be analyzed under the

framework established in Terry v. Ohio, 88 S.Ct. 1868 (1968). See

United States v. Sharpe, 105 S.Ct. 1568 (1985) (applying Terry

analysis to stop of vehicles suspected of transporting drugs);
2 Some of our cases have termed this practice a "vehicle

frisk." See United States v. Hernandez, 901 F.2d 1217, 1220 (5th

Cir. 1990); United States v. Basey, 816 F.2d 980, 991 (5th Cir.

1987).

5

United States v. Brignoni-Ponce, 95 S.Ct. 2574 (1975) (applying

Terry analysis to stop of a vehicle suspected of transporting

aliens).2 Of course, in this case appellants were not merely

suspected of illegal behavior, but were actually observed by the

stopping officer committing an offense, a Class C misdemeanor, and

were stopped on that basis. A routine traffic stop is a limited

seizure that closely resembles an investigative detention. See

Berkemer v. McCarty, 104 S.Ct. 3138, 3150 (1984) ("the usual

traffic stop is more analogous to a so-called 'Terry stop' than to

a formal arrest" for Miranda warning purposes). Also, both the

Supreme Court and the Fifth Circuit have used Terry to analyze

cases in which motorists were stopped for violating traffic laws.

See Pennsylvania v. Mimms, 98 S.Ct. 330 (1977) (per curiam) (stop

for expired license plate); United States v. Kelley, 981 F.2d 1464

(5th Cir. 1993), petition for cert. filed, (April 19, 1993) (stop

for seat belt violation); United States v. Lee, 898 F.2d 1034, 1040

(5th Cir. 1990), cert. denied, 113 S.Ct. 1057 (1993) (stop for

speeding).

Under Terry, the judicial inquiry into the reasonableness of

a search or seizure "is a dual oneSQwhether the officer's action

was justified at its inception, and whether it was reasonably

related in scope to the circumstances which justified the

interference in the first place." Terry, 88 S.Ct. at 1879.
3 Although some courts have held that a lawful traffic stop

may nonetheless violate the Fourth Amendment if the stop was

merely a pretext to allow officers to search for contraband, see

United States v. Smith, 799 F.2d 704, 708 (11th Cir. 1986);

United States v. Guzman, 864 F.2d 1512, 1517 (10th Cir. 1988),

this Court has rejected that position. In Causey, we said that

"so long as police do no more than they are objectively

authorized and legally permitted to do, their motives in doing so

are irrelevant and hence not subject to inquiry." 834 F.2d at

1184. We note too that most circuits agree with Causey. See

United States v. Cummins, 920 F.2d 498, 500-01 (8th Cir. 1990),

cert. denied, 112 S.Ct. 428 (1991); United States v. Trigg, 878

F.2d 1037, 1041 (7th Cir. 1989), cert. denied, 112 S.Ct. 428

(1991); United States v. Hawkins, 811 F.2d 210, 212-15 (3d

Cir.), cert. denied, 108 S.Ct. 110 (1987); see also United States

v. Rusher, 966 F.2d 868, 885-89 (4th Cir.), cert. denied, 113

S.Ct. 351 (1992) (Luttig, J., concurring in part); cf. United

States v. French, 974 F.2d 687, 692 n.4 (6th Cir. 1992), cert.

denied, 113 S.Ct. 1012 (1993). Even if "pretext" could

theoretically render an otherwise lawful stop invalid, the

district court found that the stop was "a valid, nonpretext

traffic stop for speeding" (emphasis added), and this finding is

adequately supported by the evidence and is not clearly

erroneous.

6

A.

Appellants do not argue, nor could they, that the initial stop

of their vehicle for speeding was improper. This is so whether or

not Terry applies. See United States v. Causey, 834 F.2d 1179,

1184 (5th Cir. 1987) (en banc); United States v. Basey, 816 F.2d

980, 990 (5th Cir. 1987).3 Appellants do argue, however, that when

the officers interrogated them about their visit to Houston, the

detention exceeded the reasonable scope of the stop's original

purpose and thus violated Terry's second prong. Appellants rely

principally upon the Tenth Circuit's decision in United States v.

Guzman, 864 F.2d 1512 (10th Cir. 1988). In Guzman, a New Mexico

police officer stopped Guzman, the driver of a rented Cadillac with

Florida plates, and his wife for seat belt violations. Guzman gave

the officer his license, registration, and car rental agreement.
4 Kelley is also strikingly similar to this case. As here,

the Kelley motorists were coming from Houston, were stopped on I10 in Beaumont, gave conflicting answers, appeared nervous, and

eventually consented to a search of the car. Also, the arresting

officers in Kelley, as here, were the ever-vigilant LaChance and

Froman of the Beaumont Police Department. 

7

The officer reviewed the documents and concluded that they were in

order. At this point, rather than issue a warning or a citation,

the officer investigated further by examining the odometer and

extensively questioning the motorists. His suspicions aroused, the

officer asked if the two were carrying contraband. Guzman denied

the allegation and invited the officer to search the car. The

search revealed cocaine concealed in the car, whereupon Guzman and

his wife were arrested. The Guzman court held that the officer's

actions violated the Fourth Amendment:

"An officer conducting a routine traffic stop may

request a driver's license and vehicle registration, run

a computer check, and issue a citation. When the driver

has produced a valid license and proof that he is

entitled to operate the car, he must be allowed to

proceed on his way, without being subject to further

delay by police for additional questioning. In order to

justify a temporary detention for questioning, the

officer must also have reasonable suspicion of illegal

transactions in drugs or of any other serious crime." Id.

at 1519.

The reasoning of Guzman was apparently applied by this Court in the

similar case of United States v. Kelley, supra. As in Guzman, the

motorists in Kelley were stopped for seat belt violations and,

subsequent to questioning by police officers, were discovered to be

in possession of drugs.4 "We do not disagree with the Tenth

Circuit," said Kelley, "that, under appropriate circumstances,

excessive questioning about matters wholly unrelated to the purpose

of a routine traffic stop may violate the Fourth Amendment." 981
5 Kelley did not decide if the Fourth Amendment had been

violated because it concluded that defendant's consent to the

search cured any violation that might have occurred. Guzman did

hold that the Fourth Amendment had been violated but then

remanded to determine if the defendants had given a valid consent

to the search.

8

F.2d at 1470.

The Fourth Amendment injury found in Guzman and assumed

arguendo in Kelley5 was a violation of Terry's second prong: that

the scope of a search must be reasonably related to its initial

justification. See Terry, 88 S.Ct. at 1879; id. at 1878 ("The

scope of the search must be 'strictly tied to and justified by' the

circumstances which rendered its initiation permissible.") (quoting

Warden v. Hayden, 87 S.Ct. 1642, 1652 (1967) (Fortas, J.,

concurring). Appellants argue that Officers LaChance and Froman

violated the second Terry prong by asking them questions about

their stay in Houston. Such interrogation, they maintain, was

wholly unrelated to the initial justification for the stop, that

is, speeding. This argument reflects some confusion about

precisely what constitutes a violation of the "scope" requirement.

At the outset, we reject any notion that a police officer's

questioning, even on a subject unrelated to the purpose of the

stop, is itself a Fourth Amendment violation. To be sure, one can

find suggestive statements to this effect in the case law. See,

e.g., Kelley, 981 F.2d at 1470 ("under appropriate circumstances,

extensive questioning about matters wholly unrelated to the purpose

of a routine traffic stop may violate the Fourth Amendment")

(emphasis added). Mere questioning, however, is neither a search

nor a seizure. See, e.g., Florida v. Bostick, 111 S.Ct. 2382, 2386
6 See also INS v. Delgado, 104 S.Ct. 1758, 1762-63 (1984);

Florida v. Royer, 103 S.Ct. 1319, 1324 (1983)(plurality opinion);

id. at 1338 n.3 (Rehnquist, J., dissenting); Terry, 88 S.Ct. at

1886 (White, J., concurring).

9

(1991) ("Since Terry, we have held repeatedly that mere police

questioning does not constitute a seizure.").6 Rather, Terry's

second prong is concerned with detentions, in other words,

seizures. See Florida v. Royer, 103 S.Ct. 1319, 1325 (1983)

(plurality opinion) ("The scope of the detention must be carefully

tailored to its underlying justification.") (emphasis added). This

is not to say that questioning is unrelated to the determination

that a detention has exceeded its lawful duration. In a garden

variety Terry stop, the nature of the questioning during a later

portion of the detention may indicate that the justification for

the original detention no longer supports its continuation. Thus,

when a police officer reasonably suspects only that someone is

carrying a gun and stops and frisks that person, the officer, after

finding nothing in a pat down, may not thereafter further detain

the person merely to question him about a fraud offense. This is

not because the questioning itself is unlawful, but because at that

point suspicion of weapons possession has evaporated and no longer

justifies further detention. When the officer is satisfied that

the individual is not carrying a gun, the officer may not detain

him longer to investigate a charge lacking reasonable suspicion.

At that point, continuation of the detention is no longer supported

by the facts that justified its initiation. Thus, detention, not

questioning, is the evil at which Terry's second prong is aimed.

Here, appellants cannot successfully claim that the detention
7 Ordering someone to get out of a car is itself a "seizure,"

but a constitutionally permissible one when done incident to a

lawful traffic stop. See Pennsylvania v. Mimms, supra. 

10

exceeded its original scope. Appellants concede, and we have no

doubt, that in a valid traffic stop, an officer can request a

driver's license, insurance papers, vehicle registration, run a

computer check thereon, and issue a citation. See Kelley, 981 F.2d

at 1469; Guzman, 864 F.2d at 1519. In this case, Officer LaChance

asked Shabazz to exit the vehicle7 and produce his driver's

license. He then called in for a computer check of the license.

The questioning that took place occurred while the officers were

waiting for the results of the computer check. Therefore, the

questioning did nothing to extend the duration of the initial,

valid seizure. Because the officers were still waiting for the

computer check at the time that they received consent to search the

car, the detention to that point continued to be supported by the

facts that justified its initiation. Cf. United States v. Sharpe,

105 S.Ct. 1568, 1576 (1985) ("Clearly this case does not involve

any delay unnecessary to the legitimate investigation of the law

enforcement officers.").

Support for our conclusion can be found in one of Guzman's

Tenth Circuit progeny, United States v. Walker, 933 F.2d 812 (10th

Cir. 1991), cert. denied, 112 S.Ct. 1168 (1992), another traffic

stop case. Significant for our purposes is the following statement

by the Walker court:

"Under the reasoning of United States v. Morales-Zamora,

914 F.2d 200 (10th Cir. 1990), our determination that the

defendant was unlawfully detained might be different if

the questioning by the officer did not delay the stop
8 Morales-Zamora had held that a canine sniff of defendants'

vehicle at a roadblock checkpoint was not an unreasonable

detention because agents completed the canine sniff before

another agent had finished examining the driver's license and

registration. 

11

beyond the measure of time necessary to issue a citation.

For example, this case would be changed significantly if

the officer asked the same questions while awaiting the

results of an NCIC [National Crime Information Center]

license or registration inquiry." Id. at 816 n.2

(emphasis added).8

So too in this case, appellants cannot complain of questioning that

took place during the pendency of a computer check. While

appellants were under no obligation to answer the questions, the

Constitution does not forbid law enforcement officers from asking.

We recognize that a detention may be of excessively long

duration even though the officers have not completed and continue

to pursue investigation of the matters justifying its initiation.

See, e.g., Sharpe, 105 S.Ct. at 1573-74; Cf. Royer, 103 S.Ct. at

1325 (1983) ("an investigative detention must be temporary and last

no longer than is necessary to effectuate the purpose of the

stop"). A prolonged investigative detention may be tantamount to

a de facto arrest, a more intrusive custodial state which must be

based upon probable cause rather than mere reasonable suspicion.

In Sharpe, the Court held that a defendant who was suspected of

transporting drugs in his truck and was held for twenty minutes

pending the arrival of a DEA agent had not been unreasonably

detained:

"While it is clear that 'the brevity of the invasion of

the individual's Fourth Amendment interests is an

important factor in determining whether the seizure is so

minimally intrusive as to be justifiable on reasonable

suspicion,' we have emphasized the need to consider the
12

law enforcement purposes to be served by the stop as well

as the time reasonably needed to effectuate those

purposes." 105 S.Ct. at 1575 (quoting United States v.

Place, 103 S.Ct. 2637, 2645 (1983)).

 

In this case, the law enforcement interest to be served by

running a computer check on the license of someone stopped for a

traffic violation is unquestioned. It is also clear that the time

it took for Officers LaChance and Froman to run the check imposed

no significant Fourth Amendment hardship. Officer LaChance

testified that, depending upon the number of checks being requested

of the lone teletype operator, a computer check can take anywhere

from two to three to ten to fifteen minutes. He also testified

that in this instance only about four minutes elapsed from the time

that the car was stopped to the time Parker gave consent.

The district court found "that the period of detention by the

officers was not beyond the scope of the initial purpose for the

stop, which was speeding" and "this detention did not go beyond

that purpose." He implicitly credited the testimony of the

officers that the questioning and consent to search took place

while the officers were awaiting the results of the computer check

and that this process lasted only about four minutes. These

findings are supported by the evidence and are not clearly

erroneous. Based upon these facts, we cannot say that the period

of appellants' detention was either unreasonably lengthy or

extended beyond the period justified by the valid speeding stop.

B.

We now turn to the issue of the validity of the consent to

search. The standards governing the judicial assessment of the
13

voluntariness of a tendered consent were described in Kelley, 981

F.2d at 1470 as follows:

"'To be valid, consent to search must be free and

voluntary.' United States v. Olivier-Becerril, 861 F.2d

424, 425 (5th Cir. 1988). The government has the burden

of proving, by a preponderance of the evidence, that the

consent was voluntary. United States v. Yeagin, 927 F.2d

798, 800 (5th Cir. 1991). Where consent is preceded by

a Fourth Amendment violation, the government has a

heavier burden of proving consent. United States v.

Ruigomez, 702 F.2d 61, 65 (5th Cir. 1983). The

voluntariness of consent is 'a question of fact to be

determined from the totality of all the circumstances.'

Schneckloth v. Bustamonte, 412 U.S. 218, 227, 93 S.Ct.

2041, 2048, 36 L.Ed.2d 854 (1973). We will not reverse

the district court's finding that consent was voluntary

unless it is clearly erroneous. Olivier-Becerril, 861

F.2d at 425-26. 'Where the judge bases a finding of

consent on the oral testimony at a suppression hearing,

the clearly erroneous standard is particularly strong

since the judge had the opportunity to observe the

demeanor of the witnesses.' United States v. Sutton, 850

F.2d 1083, 1086 (5th Cir. 1988)."

In evaluating the voluntariness of a consent, this Court has

looked to six factors:

"(1) the voluntariness of the defendant's custodial

status; (2) the presence of coercive police procedures;

(3) the extent and level of the defendant's cooperation

with the police; (4) the defendant's awareness of his

right to refuse to consent; (5) the defendant's education

and intelligence; and (6) the defendant's belief that no

incriminating evidence will be found." Olivier-Becerril,

861 F.2d at 426 (citations omitted). 

Although all six factors are relevant, no single factor is

dispositive. See id. 

The district court made specific findings concerning all six

of these factors, expressly recognizing that the government had the

burden to show voluntary consent by a preponderance of the

evidence. As to the first factor, voluntariness of custodial

status, the court found that the defendants "were not free to leave
9 The form, which Parker signed, stated:

"I understand I have the right to refuse consent to the

search described above and to refuse to sign this form. 

I further state no promises, threats, force, or

physical or mental coercion of any kind whatsoever have

been used against me."

Parker also orally consented to the search.

14

until the officers finished their check of the driver's license or

vehicle tag . . . they were checking on the radio," and that this

"militate[d] against the government." Concerning the defendant's

awareness of his right to refuse consent, the fourth factor, this

also "militate[d] against the government" to the extent that

"Parker apparently was not specifically told by Officer LaChance

that he had a right to refuse to consent"; however, the court also

found in this connection that the officers gave Parker a written

consent form to read, that "[t]he form itself informs Mr. Parker of

his right to refuse consent,"9 that there was no evidence Parker

"didn't read it" and that he was "a high school graduate and

presumably can read." As to each of the remaining four factors,

the court found for the government, finding "there was not the

presence of coercive police procedures here," that "defendants

cooperated fully," that Parker "has a high school education," and

that "Parker believed no incriminating evidence would be found."

While there was conflicting evidence on some of these factors,

there is evidence to adequately support each of the district

court's findings, and the findings are not clearly erroneous.

After making the foregoing findings, the district court ultimately

found "that the consent to search was given voluntarily by Mr.
10 We have held that the district court did not err in its

determination that the detention was valid and did not extend

beyond the period justified by the valid speeding stop. 

Nevertheless, we observe that the district court also found that

"even if this detention went beyond that period necessitated by

the speeding stop, the consent validated the search." This

determination by the district court, while not necessary to its

decision or ours, appears to be valid under our holding in

Kelley, where we applied "the Brown [v. Illinois, 95 S.Ct. 2254

(1975)] factors" and sustained the district court's determination

that the consent, even if given during a period of illegal

detention, was voluntary and validated the search. Kelley at

1471-72. In this respect, Kelley is not distinguishable from the

present case. Also supporting Kelley's holding in this respect

are Walker, 933 F.2d at 817-18; Guzman, 864 F.2d at 1520-21;

United States v. Varona-Algos, 819 F.2d 81, 82-83 (5th Cir.),

cert. denied, 108 S.Ct. 298 (1987); United States v. Ruigomez,

702 F.2d 61, 65 (5th Cir. 1983); United States v. Ballard, 573

F.2d 913, 916 (5th Cir. 1978). But see United States v.

Melendez-Gonzalez, 727 F.2d 407, 413-14 (5th Cir. 1984).

11 Our analysis assumes, arguendo only, that decisions such as

United States v. Robinson, 94 S.Ct. 467, 477 (1973); Gustafson v.

Florida, 94 S.Ct. 488 (1973); New York v. Belton, 101 S.Ct. 2860

(1981); and United States v. Ross, 102 S.Ct. 2157 (1982), do not

apply where, at the time of the alleged Fourth Amendment

violation following a lawful stop for a traffic violation, there

has not been "a full-custody arrest" but instead merely "'a

routine traffic stop' . . . where the officer would simply issue

a notice of violation and allow the offender to proceed." 

Robinson, 94 S.Ct. at 477 n.6. The Supreme Court seems to have

expressly left this open. Id. Cf. United States v. Parr, 843

F.2d 1228 (9th Cir. 1988). We need not reach this issue because

here the brief continued detention following the lawful traffic

stop was valid under Terry and the search was pursuant to valid,

voluntary consent.

15

Parker without coercion."

Based on the district court's specific findings as to each of

the six factors, and considering the evidence as a whole, we cannot

say that the district court's ultimate finding, that Parker

voluntarily and without coercion consented to the search, was

clearly erroneous or influenced by an incorrect view of the law.10

Appellants have failed to demonstrate that the district court

erred by denying their motion to suppress.11
12 At the charge conference defense counsel stated "I want to

make sure that the Court's definition of 'possession' includes

the fact that the mere presence alone is not sufficient, that

mere presence alone is not sufficient to convict the defendants." 

The court inquired if counsel were "objecting to the definition

of 'possession,'" and counsel replied "insofar as it does not

include a statement as to the mere presence, it does not in

itself prove up possession and would not enableSQenable the jury

to convict the defendants just because they were present." The

court responded "I don't think the charge permits them to convict

either defendant simply because they were present . . . . they

have to find possession. 'Possession' is defined here." Later,

defense counsel argued that "the proper precautionary instruction

that mere presence aloneSQby not placing it in there, you're

lessening the government's burden of proof," and objected "to the

Court's failing to instruct the jury on 'mere presence' because

we feel that the foundation of the case warrants it and that's

the whole thrust of the case. By failing to include it, it

amounts to a comment on the weight of the evidence by the Court

and it denies the effective assistance of counsel because we will

not be able to argue it effectively . . . ." The defense never

tenderedSQorally or in writingSQthe "mere presence" instruction

they desired. We assume, arguendo, that the objections were

adequate so that we may properly treat the case as if an

instruction had been requested (and objection made to the refusal

to give it) that "mere presence in the area where the narcotic is

discovered or mere association with the person who does control

the drug or the property where it is located, is insufficient to

support a finding of possession." Stephenson at 1355.

16

II. The "Mere Presence" Instruction

Appellants argue that the trial court erred by failing to give

the jury a "mere presence" chargeSQi.e., an instruction that one's

presence in the area where drugs are found or association with the

person actually in control of the drugs, is insufficient to support

a finding of possession. Although such an instruction is

abstractly an accurate statement of the law, see United States v.

Stephenson, 474 F.2d 1353, 1355 (5th Cir. 1973), it does not follow

that the failure to so instruct was reversible error.12 Appellants

rely upon United States v. Cordova-Larios, 907 F.2d 40 (5th Cir.

1990), in which we reversed a conviction for failure to submit a
13 It is settled law that this Court will reverse the refusal

to give a requested jury instruction only if that instruction

"(1) was substantially correct; (2) was not

substantially covered in the charge delivered to the

jury; and (3) concerned an important issue so that the

failure to give it seriously impaired the defendant's

ability to present a given defense." United States v.

Duncan, 919 F.2d 981, 990 (5th Cir. 1990), cert.

denied, 111 S.Ct. 2036 (1991).

14 The trial court instructed the jury as follows:

"Possession, as that term is used in this case, may be of

two kinds: actual possession and constructive possession. A

person who knowingly has direct physical control over a thing, at

a given time, is then in actual possession of it.

A person who, although not in actual possession, knowingly

has both the power and the intention, at a given time, to

exercise dominion or control over a thing, either directly or

through another person or persons, is then in constructive

possession of it.

Possession may be sole or joint. If one person alone has

actual or constructive possession of a thing, possession is sole. 

If two or more persons share actual or constructive possession of

a thing, possession is joint.

You may find that the element of possession, as that term is

used in these instructions, is present if you find beyond a

reasonable doubt that the defendant had actual or constructive

possession, either alone or jointly with others." (Emphasis

added).

17

mere presence instruction. However, in the present case no

reversible error is presented. First, it is well-established that

the refusal to submit a requested jury instruction is not

reversible error if the instruction was substantially covered in

the charge as given.13 In this case, the trial court's instructions

to the jury as to possession were sufficient to prevent a

conviction (or a finding of possession) based upon mere presence.14

Therefore appellants' mere presence instruction was substantially

reflected in the charge as given. In United States v. McKnight,
18

953 F.2d 898 (5th Cir.), cert. denied, 112 S.Ct. 2975 (1992),

defendants similarly complained of the trial court's refusal to

submit a mere presence instruction. We held, however, that the

court's constructive possession chargeSQwhich was identical to the

charge delivered in this caseSQobviated the need for a separate

mere presence charge. We relied in McKnight in part upon United

States v. Erwin, 602 F.2d 1183, 1185 (5th Cir. 1979), cert. denied,

100 S.Ct. 1014 (1980), and United States v. Rojas, 537 F.2d 216,

200 (5th Cir. 1976), cert. denied, 97 S.Ct. 785 (1977), cases in

which we had reached the same conclusion. There is no indication

that a constructive possession charge was submitted to the jury in

Cordova-Larios, a fact which McKnight observed. "There is no

conflict, therefore, between the holdings of Cordova-Larios and

Rojas." McKnight, 953 F.2d at 904.

McKnight also affords a second basis for rejecting appellants'

assignment of error. "McKnight's claim fails," we said, "because

this case, unlike Cordova-Larios, is, by its undisputed facts, not

a 'mere presence' case." 953 F.2d at 903 (emphasis in original).

In McKnight, drugs and firearms were discovered in McKnight's

small, one-bedroom house where he lived with his 84-year-old mother

and a boarder. McKnight's theory of defense was that though

present he was unaware of the contraband. We stated that these

circumstances did not lend themselves, as a legal matter, to a mere

presence defense:

"The dominion and control associated with owning and

living in a small, open house like McKnight's . . . is

utterly inconsistent with the legal conclusion that

McKnight was 'merely present' in a house full of guns and

drugs in its common areas (and a gun in the dresser used
15 In Cordova-Larios, the defendant was a passenger in a truck

owned his brother-in-law and driven by a man named Saenz who the

two had met only the previous day. The brother-in-law had loaned

the truck to Saenz, not the defendant, for Saenz to travel from

Juarez, Mexico to Albuquerque, New Mexico. The defendant came

along with the intention of buying goods. Border patrol agents

gave chase after Saenz stopped the truck on a road by the Rio

Grande and someone who had been hiding in bushes placed several

bundles of marihuana in the bed of the truck. During the chase,

the defendant fell out of the truck. The defendant testified

that he had attempted to wrest control of the truck from Saenz

but the latter had pushed him out of the passenger door.

19

by McKnight)." Id. at 903 (emphasis in original).

By contrast, the facts of Cordova-Larios, which we recount in the

margin, are far more amenable to such a defense than are the facts

of McKnight.

15 As we said, "The record sufficiently supports the

defensive theory of mere presence to entitle the defendant to the

requested instruction." Cordova-Larios, 907 F.2d at 42. 

We believe that this case is closer to McKnight than to

Cordova-Larios. There is no evidence that appellants were mere

bystanders who happened to be at the scene of a crime, as in

Cordova-Larios. Quite the contrary, as in McKnight, the drugs were

indisputably discovered in a location the control over which cannot

be fairly attributed to anyone but appellants. Accordingly, it was

not error to refuse the mere presence instruction.

III. The Sufficiency of the Evidence

Appellants' final challenge is to the sufficiency of the

evidence. We will sustain the convictions if a rational jury could

have found as to each appellant that each of the elements of the

offense was established beyond a reasonable doubt. See Jackson v.

Virginia; 99 S.Ct. 2781, 2788-89 (1979); United States v. Bell, 678

F.2d 547, 549 (5th Cir.1982) (en banc), aff'd, 103 S.Ct. 2398
16 Appellants stipulated that, if the government proves knowing

possession, they would concede intent to distribute.

20

(1983). The evidence will be viewed in the light most favorable to

the government. See Glasser v. United States, 62 S.Ct. 457 (1942).

A conviction for possession of drugs with intent to distribute, a

violation of 21 U.S.C. § 841(a)(1), requires the government to

prove that the defendants knowingly possessed contraband with the

intent to distribute it. See, e.g., United States v. Richardson,

848 F.2d 509, 511 (5th Cir.1988). Here, appellants challenge only

the knowing possession requirement.16 We hold that the evidence

suffices to support the jury's conclusion that appellants knowingly

possessed the drugs.

A. Possession

Possession, as noted previously, may be actual or

constructive. Ownership, dominion, or control over the contraband,

or over the vehicle in which it was concealed, constitutes

constructive possession. Here, Shabazz was driving, and Parker was

riding in, the car in which the cocaine was discovered. Parker

represented that he owned the vehicle. The two were traveling

together, and had been together in Houston for several days.

Accordingly, the jury could easily have found that appellants were

in constructive possession of the cocaine. 

B. Knowing

We have said that, "Knowledge of the presence of contraband

may ordinarily be inferred from the exercise of control over the

vehicle in which it is concealed." United States v. Garcia, 917

F.2d 1370, 1376-77 (5th Cir.1990). In a number of recent cases, we

have added that, if the illegal substance is contained in a hidden
21

compartment in the vehicle, we may also require circumstantial

evidence that is suspicious in nature or demonstrates guilty

knowledge. See, e.g., United States v. Pineda-Ortuno, 952 F.2d 98,

102 (5th Cir.1992), cert. denied, 112 S.Ct. 1990 (1992); United

States v. Gonzalez-Lira, 936 F.2d 184, 192 (5th Cir.1991); United

States v. Diaz-Carreon, 915 F.2d 951, 954-55 (5th Cir.1990); United

States v. Anchondo-Sandoval, 910 F.2d 1234, 1236 (5th Cir.1990).

Here, there was additional circumstantial evidence from which the

jury could have found that appellants' possession of the cocaine

was knowing. Appellants gave inconsistent accounts of their stay

in Houston, were nervous, and became anxious as Officer LaChance

began to search the side of the car where the drugs were found.

Shabazz, the driver, gave the officers a false driver's license.

Similar evidence has been deemed sufficient to support convictions

in previous cases. See Pineda-Ortuno, 952 F.2d at 102

(nervousness, conflicting statements, and implausible story); DiazCarreon, 915 F.2d at 954-55 (same); Anchondo-Sandoval, 910 F.2d at

1237 (inconsistent story); United States v. McDonald, 905 F.2d 871,

874 (5th Cir.), cert. denied, 111 S.Ct. 566 (1990) (nervousness,

inconsistent stories, heightened anxiety when search was getting

warmer). Furthermore, a screwdriver was lying on the front

floorboard of the driver's side of the car and there were fresh

nicks on the screws of the front air conditioning duct on the

driver's side from which the cocaine readily tumbled out when the

screws were loosened. The jury could properly have inferred that

the cocaine had been concealed only recently, thus implicating the

car's latest occupants. No defense evidence was presented.
22

Conclusion

For the reasons stated herein, appellants' convictions are

AFFIRMED.