* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-51438

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

CHARLES EDWARD THOMAS

Defendant-Appellant

Appeals from the United States District Court 

for the Western District of Texas

USDC No. 7:07-CR-108

Before SMITH, WIENER, and HAYNES, Circuit Judges.

WIENER, Circuit Judge:*

Defendant-Appellant Charles Edward Thomas challenges his convictions

for possession with intent to distribute more than five grams of cocaine base

(“crack”) on May 1, 2007 and .28 grams on February 28, 2007. Thomas contends

that (1) the district court abused its discretion when it admitted evidence of his

prior drug convictions under Federal Rule of Evidence 404(b) and when it

permitted testimony from a police officer on the correlation between drug

distribution and the amount of drugs found on Thomas during the May 1 offense;

United States Court of Appeals

Fifth Circuit

F I L E D

September 26, 2008

Charles R. Fulbruge III

Clerk
No. 07-51438

2

and (2) the evidence adduced at trial is insufficient to support conviction on

either count of the indictment. Finding no error, we affirm Thomas’s conviction

on both counts. 

I. FACTS AND PROCEEDINGS

A. First Count (the May 1, 2007 Offense)

In the first count of the two count indictment, Thomas was charged with

possession with intent to distribute five or more grams of crack. Officer

Alejandro Jurado ofthe Odessa Police Departmenttestified that on the morning

of May 1, 2007, he saw one man and two women sitting in a vehicle in the

parking lot of the MCM Fundome Hotel in Odessa, Texas. Officer Jurado spoke

with the driver of the car, who said that he was waiting for a friend named

Edward, subsequently identified as the defendant, Charles Edward Thomas. 

The occupants of the car did not have a room at the hotel and only the

driver had identification. When the woman in the front passenger seat of the

car, later identified as Regina Holmes, began to make movements with her foot,

Officer Jurado asked her to get out of the car. During questioning, she revealed

that the friend for whom they were waiting, Edward, had gone upstairs,

although she did not know why. She also pointed out his car, which Officer

Jurado recognized as one that he knew Thomas drove from time to time. 

While questioning Holmes, Officer Jurado saw Thomas come from around

a stairwell in the back of the hotel. Holmes identified Thomas as her friend

Edward. At the same time, Officer Jurado noticed Thomas put a flimsy object,

or a “baggie,” into his pocket. Thomas then approached Officer Jurado, who

began to question him. After Thomas refused to provide ID or his name, Officer

Jurado attempted to restrain him, but Thomas fled. During the pursuit, Officer

Jurado saw Thomas throw “something,” which appeared to be a flimsy object,

over a fence. Officer Jurado then ordered Thomas to the ground and, after a
No. 07-51438

1 Government: “All right. From your knowledge and your training and your

interaction on the street with crack cocaine users, do you have a sense about

how many grams of crack cocaine a typical user would want to put in a pipe, for

example, in order to get high?”

Garcia: “Yes.”

[Defense objection]

Garcia: “Typically, less than a gram for one use, common use.”

. . . . 

Government: “From your experience, looking at the amount and how it’s put

together there, do you have a sense of whether that would

typically be an amount that would be distributed, or is it a

personal use amount?”

[Defense objection]

Garcia: “My experience, that seems to be a distribution amount.”

Government: “And why do you – what factors do you look to as you look at that

(continued...)

3

brief struggle, subdued him. No drug paraphernalia was found on Thomas’s

person. 

Subsequent investigation of the area where Officer Jurado had seen

Thomas fling the flimsy object revealed a bag containing what appeared to

Officer Jurado to be large rocks of crack. Testimony from Marissa Silva, a

forensic scientist for the Texas Department of Public Safety, identified the

contents of the bag as two rocks of crack, one weighing 5.96 grams, the other

6.76 grams. 

Officer Jurado also testified that when he looked back to check on his

squad car, he saw Holmes throw an object from the place where she was sitting.

A subsequent search of the area revealed a crack pipe. Holmes was arrested for

possession of drug paraphernalia. 

Detective Jesse Garcia of the Odessa Police Department’s Narcotics-Vice

Unit testified after Officer Jurado. Detective Garcia had responded to the scene

at the Fundome on May 1, 2007 to assist Jurado. He testified that Jurado gave

him a quantity of what appeared to be narcotics. The government then asked

whether, based on Detective Garcia’s experience, the quantity of crack was

consistent with a distribution amount or with an amount for personal use.1
No. 07-51438

1

(...continued)

exhibit that would make you think that?”

Garcia: “Just the amount. The typical user amount would be a small

rock. These, of course, are large rocks of crack cocaine.”

2 On cross-examination, Detective Garcia conceded that the amount of drugs seized

could also be for personal use. 

4

Detective Garcia testified, over objection, that, in his experience, it appeared to

be a distribution amount. He based his determination on the fact that the crack

rocks were larger than the size typical of personal use.2

The government then introduced, over objection, evidence of Thomas’s

prior convictions for cocaine distribution. The government had given Thomas

proper Rule 404(b) notice of its intention to introduce evidence of these

convictions at trial, and the court had denied an opposition motion in limine by

the defense prior to trial. The trial court also gave the jury a proper limiting

instruction on the prior-convictions evidence at the time of the introduction. 

B. Second Count (the February 28, 2007 Offense)

Thomas was charged in the second count of the indictment with possession

with intent to distribute .28 grams of crack. Officer Jackie Thompson, formerly

of the Odessa Police Department, testified that on the night of February 28,

2007, he and Corporal Michael Anaya were at the Super N motel. Officer

Thompson observed Thomas standing at the driver’s side of a truck, talking to

someone in the truck, and passing something hand to hand. While approaching

the truck, Officer Thompson saw Thomas throw some white substance into the

truck, which substance the officers thought might be crack. The officers then

recovered three small rocks of crack from the area inside the truck where it

appeared Thomas had thrown the white substance. Thomas stipulated that the

crack recovered weighed .28 grams. 

While searchingThomas, Officer Thompson discovered $310 in cash on his

person. Thomas did not possess any pay stubs, and he claimed that he had
No. 07-51438

3 United States v. Arnold, 467 F.3d 880, 885 (5th Cir. 2006), cert. denied, 127 S. Ct.

2445 (2007). 

4 United States v. Morgan, 505 F.3d 332, 339 (5th Cir. 2007) (per curiam).

5 United States v. Miller, 520 F.3d 504, 511 (5th Cir. 2008), petition for cert. filed, 77

U.S.L.W. 2001 (U.S. June 24, 2008) (07-11561); United States v. Mitchell, 484 F.3d 762, 774

(5th Cir. 2007), cert. denied, 128 S. Ct. 297 (2007). 

5

earned the money by working odd jobs, such as yard work. From the truck,

Corporal Anaya recovered a 7-UP can that had been modified in such a way that

it could be used to smoke crack. He also testified that while questioning Thomas

and the truck’s occupants, one of the other individuals attempted to swallow

what Corporal Anaya thought was crack. 

Atthe end ofthe government’s case in chief, counsel for Thomas moved for

a judgment of acquittal. The district court denied the motion, and, after entry

of a stipulation as to the amount of crack involved in the February 28 offense,

the defense rested. Defense counsel made another objection to the admissibility

of the prior convictions, which was overruled. In giving its jury charge, the trial

court repeated its limiting instruction on the use of the evidence of prior

convictions. The jury eventually convicted Thomas on both counts. Defense

counsel renewed his motion for a judgment of acquittal, which the court again

denied. Thomas timely filed a notice of appeal.

II. ANALYSIS

A. The Federal Rule of Evidence 404(b) Challenge 

1. Standard of Review

We review a decision to admit evidence of prior convictions for abuse of

discretion,3subject to a harmless error inquiry if abuse is found.4 The abuse of

discretion standard is heightened5 when evidence is admitted under Federal
No. 07-51438

6 United States v. Jackson, 339 F.3d 349, 354 (5th Cir. 2003) (internal quotation marks

omitted).

7 United States v. Crawley, 533 F.3d 349, 353-54 (5th Cir. 2008). 

8

Id. at 354.

9 FED. R. EVID. 404(b).

6

Rule of Evidence 404(b) because “[e]vidence in criminal trials must be strictly

relevant to the particular offense charged.”6

2. Analysis

Federal Rule of Evidence 404(b) states, in relevant part:

Evidence of other crimes, wrongs, or acts is not admissible to prove

the character of a person in order to show action in conformity

therewith. It may, however, be admissible for other purposes, such

as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity or absence of mistake or accident . . . .

Evidence of prior wrongs must be extrinsic to implicate Rule 404(b).7

Extrinsic evidence is that which is not “inextricably intertwined with the

charged offense, when both acts are part of the same criminal episode, or when

the ‘other act’ was a necessary preliminary step toward the completion of the

charged crime.”8 Moreover, the government must provide notice before offering

extrinsic evidence of other crimes.9 Thomas does not contend that the

government failed to provide notice, and the government does not claim that
No. 07-51438

10 It is not possible to tell from the provisions under which Thomas was convicted for

his prior state drug crimes, sections 481.112 and 481.115 ofthe Texas Health and Safety Code,

whether he delivered powder cocaine or crack. The judgments from the Texas courts reference

“cocaine,” but the structure of Texas Health and Safety Code section 481.102(3)(D), which lists

cocaine as a substance the possession and delivery of which is criminalized by sections 481.112

and 481.115, includes “a salt, compound, derivative, or preparation of a salt, compound, or

derivative” of cocaine as well. Crack would fall within this expansive definition of cocaine. 

As the matter is ambiguous, and as interpreting the convictions to be for cocaine and

not crack favors Thomas, we presume that the convictions were for distribution of cocaine. It

also appears that the November 23, 1993 conviction contains a typographical error as it

describes the conviction as being for “Delivery of Cocaine,” but cites 481.115, which

criminalizes possession, not delivery. In this appeal, however, Thomas does not contest the

characterization of his prior convictions as being for delivery. 

11 582 F.2d 898 (5th Cir. 1978) (en banc); see Crawley, 533 F.3d at 353-54.

12 Beechum, 582 F.2d at 911; United States v. Sanders, 343 F.3d 511, 518 (5th Cir.

2003). 

13 Beechum, 582 F.2d at 911; United States v. Morgan, 505 F.3d 332, 339 (5th Cir.

2007) (per curiam). 

7

Thomas’s two prior state convictions for cocaine distribution10 are intrinsic.

Thus, both of these threshold requirements were satisfied. 

We conduct our substantive Rule 404(b) inquiry under the two-prong test

from United States v. Beechum.

11 “First, it must be determined that the extrinsic

evidence is relevantto an issue other than the defendant’s character.”12 “Second,

the evidence must possess probative value that is not substantially outweighed

by its undue prejudice and must meet the other requirements of [Federal Rule

of Evidence] 403.”13

a. First Prong: Relevancy 

The standard used in the first prong’s relevancy inquiry is the same as the

one used in Federal Rule of Evidence 401, namely, whether the evidence has

“any tendency to make the existence of any fact that is of consequence to the

determination of the action more or less probable than it would be without the
No. 07-51438

14 FED. R. EVID. 401; see Beechum, 582 F.2d at 911. 

15 United States v. Broussard, 80 F.3d 1025, 1040 (5th Cir. 1996). 

16 See United States v. Arnold, 467 F.3d 880, 885 (5th Cir. 2006), cert. denied, 127 S.

Ct. 2445 (2007).

17 See United States v. Miller, 520 F.3d 504, 512 (5th Cir. 2008), petition for cert. filed,

77 U.S.L.W. 2001 (U.S. June 24, 2008) (07-11561); United States v. Jimenez, 613 F.2d 1373,

1376 (5th Cir. 1980); United States v. San Martin, 505 F.2d 918, 922-23 (5th Cir. 1974); see

also United States v. Garcia, 291 F.3d 127, 138-39 (2d Cir. 2002); United States v. Lynn, 856

F.2d 430, 435 (1st Cir. 1988).

18 Arnold, 467 F.3d at 885; Broussard, 80 F.3d at 1040.

19 Arnold, 467 F.3d at 885. 

20 See id.

8

evidence.”14 We have held that “[t]he mere entry of a not guilty plea in a

conspiracy case raises the issue of intent sufficiently to justify the admissibility

of extrinsic offense evidence.”15 This rule appears to have also been applied in

drug cases when intent was at issue.16

The amount of time between the extrinsic offense and the offense charged

is given a varying weight in the admissibility inquiry,17 but temporal proximity

alone is not usually dispositive.18 We have held that a lapse of nine years

between a conviction for possession of crack and a subsequent charge of

possession of crack with intent to distribute did not render evidence of the prior

conviction irrelevant, particularly because the defendant put his knowledge and

intent at issue at trial.19 We have also admitted evidence of prior convictions for

offenses committed as much as fifteen and eighteen years prior to the charged

offense.20

The crimes with which Thomas was charged here, possession of crack with

intent to distribute, required the government to prove that Thomas knowingly
No. 07-51438

21 See United States v. Aguilar, 503 F.3d 431, 435 (5th Cir. 2007) (per curiam), cert.

denied, 128 S. Ct. 1304 (2008).

22 Because Thomas’s prior convictions were for delivery, not mere use, his citations to

United States v. McDonald, 905 F.2d 871, 875 (5th Cir. 1990) and United States v. Hill, 953

F.2d 452,456 (9th Cir. 1991), are inapposite. 

23 As discussed above, the fact that (by assumption) different narcotics are involved

does not preclude a finding of relevance. See Broussard, 80 F.3d at 1040.

24 United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en banc). 

25 See TEX. HEALTH & SAFETY CODE §§ 481.112, 481.115 (Vernon 2007).

9

possessed crack and that he intended to distribute the crack he possessed.21 By

pleading not guilty and submitting the issues of knowledge and intent to

examination at trial, Thomas made extrinsic evidence of prior convictions

relevant to show such knowledge and intent.22

Even if this were not the case, Rule 404(b) clearly contemplates, by its

terms, the use of extrinsic offense evidence to prove intent and knowledge.

Therefore, the only question under the standard Rule 401 inquiry in Beechum’s

first prong is whether two prior convictions for cocaine delivery make it more or

less likely that Thomas knowingly possessed crack and intended to distribute it

this time.23 His prior convictions certainly help to rule out the possibility that

Thomas was unfamiliar with powder cocaine or crack, with the ways in which

such drugs are packaged, and with the manner in which they are distributed.

This is not a consequence of the “bad character” that a prior cocaine distribution

conviction might be thought to represent, but of the fact that it eliminates some

alternative explanations, such as ignorance of drugs and the drug trade.

Further, “because the defendant had unlawful intent in the extrinsic offense, it

is less likely that he had lawful intent in the present offense.”24 Thomas’s

extrinsic prior offenses were crimes for which either knowledge or intent was

required.25 There are, therefore, reasons other than evidence of Thomas’s
No. 07-51438

26 467 F.3d 880, 885 (5th Cir. 2006), cert. denied, 127 S. Ct. 2445 (2007).

27 80 F.3d at 1039-40. 

28 United States v. Bermea, 30 F.3d 1539, 1562 (5th Cir. 1994).

29 See Broussard, 80 F.3d at 1030, 1040. 

10

character why the prior extrinsic offenses make intent and knowledge more

likely in the instant case. Accordingly, the prior extrinsic evidence is relevant.

This conclusion accords with a vast number of cases in this circuit. For

example, in United States v. Arnold,

26 we determined that a nine-year-old

conviction for possession of crack was relevant to a new charge of possession of

crack with the intent to distribute it. In United States v. Broussard,

27 we

determined that a ten-year-old conviction for conspiring with intent to distribute

marijuana was relevant to a charge of possessing cocaine with the intent to

distribute it. 

b. Second Prong: Probative Value vs. Undue Prejudice

For purposes of the second Beechum prong, a similarity between the

elements of a prior extrinsic offense and the elements ofthe charged offense may

enhance the probative value of the extrinsic evidence.28 Even the fact that a

prior conviction involved different kinds of narcotics than those implicated in the

charged act does not render evidence inadmissible.29 A similarity between the

offenses, however, also increases the risk of prejudice; so, when the government

adduces strong evidence of intent, extrinsic offense evidence should be more
No. 07-51438

30 Bermea, 30 F.3d at 1562. We made this clear in United States v. Jackson, 339 F.3d

349, 356 (5th Cir. 2003), when, in analyzing the second of the Beechum prongs, we held that

when there is “other substantial evidence going to the issue of intent,” extrinsic evidence might

be unduly prejudicial. In that case, however, the defendant had not put intent at issue

(arguing instead that he was the wrong man). Thomas’s defense strategy put intent directly

at issue. 

31 United States v. LeBaron, 156 F.3d 621, 625 (5th Cir. 1998). 

32 United States v. Harris, 932 F.2d 1529, 1534 (5th Cir. 1991); Bermea, 30 F.3d at

1562. 

33 Bermea, 30 F.3d at 1562.

34 United States v. Miller, 520 F.3d 504, 512 (5th Cir. 2008), petition for cert. filed, 77

U.S.L.W. 2001 (U.S. June 24, 2008) (07-11561); United States v. Adair, 436 F.3d 520, 527 (5th

Cir. 2006). 

35 United States v. Broussard, 80 F.3d 1025, 1040 (5th Cir. 1996).

11

readily excluded.30 Inversely, when the direct evidence of intent is slight, the

probative value of extrinsic evidence is enhanced.31

We have frequently held that extrinsic evidence of past drug offenses is

“more probative than prejudicial.”32 This is a consequence of Rule 403, which

“tips the balance in favor of the admission of relevant evidence, permitting

exclusion only if the evidence’s probative value is substantially outweighed by

the danger of unfair prejudice.”33 Finally, limiting instructions by the trial court

mitigate the possibility of unfair prejudice,34 particularly when given

immediately after the extrinsic offense evidence is admitted.35

The probative value versus unfair prejudice balancing and the Rule 403

inquiries of Beechum’s second prong essentially reduce to a prejudice inquiry in

this appeal because Thomas has not argued that admission of his prior drug

convictions led to “confusion of the issues, or misleading the jury, or . . . undue
No. 07-51438

36 FED. R. EVID. 403.

37 A fourth observation, not as important, concerns Thomas’s complaints about the

references by the government to his prior convictions at closing. The government in the

instant case was careful to ask the jury to think about the convictions as evidence only of

intent. As we conclude that such a use is permitted by Rule 404(b), there is no reason to treat

the use of this evidence in closing different from the way we would treat it if it occurred during

the government’s case in chief. United States v. Jackson, 339 F.3d 349 (5th Cir. 2003), is not

to the contrary. It was the use of the evidence by the government to attack the defendant’s

character during its opening statement that was problematic. Id. at 356-57. 

38 932 F.2d 1529, 1534 (5th Cir. 1991). 

39 Miller, 520 F.3d at 512; United States v. Adair, 436 F.3d 520, 527 (5th Cir. 2006);

United States v. Broussard, 80 F.3d 1025, 1040 (5th Cir. 1996). 

40 United States v. LeBaron, 156 F.3d 621, 625 (5th Cir. 1998). 

12

delay, waste of time, or needless presentation of cumulative evidence.”36 We

preface the prejudice inquiry in this case with three observations.37

First, we wrote in United States v. Harris that “[a]s to the relative

probative value of the evidence, our court has previously held that proof of prior

drug activities is more probative than prejudicial.”38 Second, two limiting

instructions were given in the trial ofthis case, one at the time that the evidence

was introduced and another during the charging of the jury; and we have

previously held such instructions cure much of any prejudice otherwise

attributable to the admission of evidence of prior convictions.39 Third, no other

“substantial evidence” going to the issue of intent was adduced in this trial,

which increases the probative value of extrinsic evidence of similar prior

offenses.40

As extrinsic evidence of prior drug crimes has been held to be more

probative of intent and knowledge than prejudicial, the only serious contention

Thomas makes under Beechum’s second prong is that his convictions are so old

that their probative value was substantially outweighed by their prejudicial
No. 07-51438

41 505 F.2d 918, 922-23 (5th Cir. 1974) (footnote omitted). 

42 Id.

43 613 F.2d 1373, 1376 (5th Cir. 1980).

13

effect. The cases Thomas cites for this proposition are inapposite. In United

States v. San Martin, we said:

The test for remoteness need not, and indeed cannot, be reduced

to a simple rule of thumb based solely on the number of years

that have elapsed between the prior crime and the present

offense charged. The better test . . . is whether the prior crime is

similar [enough] in nature and in its material elements to have

clearly probative value with respect to the intent of the accused at

the time of the offense charged.41

The prior convictions that we ruled inadmissible in that case clearly lacked

probative value: Two were youthful indiscretions that involved the formation of

intent in a split second and the third did not include specific intent as a material

element.42

In contrast, Thomas was in his thirties at the time of his first conviction;

and, in contrast to the situation in San Martin that involved an assault on a

police officer, here there is no contention by Thomas that, if he formed an intent

to distribute the crack at all, he did so in a split second. Even were this not so,

we have held, as discussed above,that prior drug crimes are “sufficiently similar

in nature” to have “clearly probative value with respect to the intent of the

accused.” The scale in the central probative/prejudice balancing inquiry tips in

favor of admitting evidence of prior drug offenses when the defendantis charged

with another drug-related crime. 

The second case Thomas cites, United States v. Jimenez,

43 involved

extrinsic evidence of an offense committed after the crime with which the

defendant was charged. There we said: “Although we do not suggest that

subsequent extrinsic evidence could never be admitted under rule 404(b), it
No. 07-51438

44 Id.

45 856 F.2d 430, 435 (1st Cir. 1988).

46 Id. (emphasis added). 

47 291 F.3d 127, 138-39 (2d Cir. 2002).

14

certainly bears substantially less on predisposition than would a prior extrinsic

offense.”44 Unlike the post-hoc extrinsic offenses introduced in Jimenez, those

in Thomas’s case occurred prior to the crimes of conviction at issue in this

appeal. Additionally, Jimenez’s discussion of the time factor is dicta in light of

its conclusion that the evidence failed the first prong of the Beechum test.

Finally, unlike here, no limiting instruction was given to the Jimenez jury. 

The teachings of other circuits are not to the contrary on the core issue in

the probative/prejudice inquiry, viz., the similarity between the offenses.

Thomas cites United States v. Lynn, in which the First Circuit said that“the fact

that the prior conviction concerned events that took place six years before the

instant offense suggests even more strongly thatthe two acts were unrelated but

for involvement with the same illicit substance.”45 The focus of the Lynn court,

however, was on the dissimilarity between the two offenses. It concluded its

discussion by saying: “Given the dissimilarities between the two episodes, we

cannot uphold the district court’s finding that the prior crimes evidence was

probative . . . .”46

The last case cited by Thomas, United States v. Garcia,

47 held that a lapse

of twelve years prevented a finding that the defendant knew a particular phone

conversation comprised a “coded drug transaction.” There was no evidence from

the defendant’s prior conviction that he knew drug dealers sometimes

communicate in code. Again, the focus was on the probative value of the prior

crime of conviction, with time lapse merely a factor (although given more weight

in Garcia than in other cases). In fact, we have affirmed a district court’s
No. 07-51438

48 United States v. Arnold, 467 F.3d 880, 885 (5th Cir. 2006) (citing, with apparent

approval, admission of a fifteen-year-old conviction in a drug case), cert. denied, 127 S. Ct. 2445

(2007). 

49 There are, of course, cases in which the prior convictions are so stale that the passage

of time itself calls into question their similarity to the charged offense. See, e.g., United States

v. San Martin, 505 F.2d 918, 922 (5th Cir. 1974) (noting that the prior crimes “must not be so

remote as to be lacking in evidentiary value.” (internal quotation marks omitted)). The effect

of the lapse of time between crimes on the probative value of the evidence of prior offenses

necessarily varies according to the presence and extent of the other factors discussed above.

The lopsided distribution in favor of admissibility of almost all the factors except the passage

of time in the instant case makes it a poor candidate for any more elaborate discussion of the

issue.

50 United States v. Williams, 957 F.2d 1238, 1240-41 (5th Cir. 1992).

51 United States v. Allard, 464 F.3d 529, 533 (5th Cir. 2006). 

15

admission of evidence of crimes committed more than twelve years prior to the

charged offense.48

We are convinced that the district court did not abuse its discretion when

it determined thatthe probative value of Thomas’s two prior cocaine distribution

convictions outweighed any undue prejudice that they might have conveyed to

the jury.49 Given our conclusion regarding the first Beechum prong, we hold that

the evidence of prior crimes was properly admitted. This obviously obviates the

need to conduct a harmless error inquiry. 

B. Detective Garcia’s Testimony

1. Standard of Review

The decision of a district court to admit evidence is reviewed for abuse of

discretion, subject to a harmless error inquiry.50

2. Analysis

The requirements of the Federal Rules of Evidence governing expert

testimony apply only to testimony from a witness tendered as an expert.51 As

Detective Garcia was nottendered as an expert, the strictures of Rule 704(b) are
No. 07-51438

52 United States v. Ibarra, 493 F.3d 526, 532 (5th Cir. 2007), cited by Thomas for the

proposition that a particular phrasing of expert testimony by a police officer in a criminal case

may transgress Rule 704(b) by embracing an ultimate issue of fact, and United States v. Speer,

30 F.3d 605, 609-10 (5th Cir. 1994), cited by the government for the proposition that an expert

witness such as a DEA agent may testify as to whether an amount of drugs is “consistent with

narcotics trafficking” or consistent “with personal use,” are inapplicable as they turn on Rule

704(b). 

53 FED. R. EVID. 701.

54 Garcia testified that he had made two or three crack arrests per night for three years,

totaling in the hundreds. He also testified that he had talked to crack users about how they

consume it, how much they consume, and other related matters. He had also had formal

training about narcotics in classes and seminars. 

16

inapplicable.52 Therefore, under Rule 704(a), his testimony could “embrace an

ultimate issue to be decided by the trier of fact,” such as whether Thomas

intended to distribute the crack he possessed on May 1, 2007. 

Nevertheless, Detective Garcia’s testimony was opinion testimony, albeit

lay opinion testimony, so it must satisfy the requirements of Federal Rule of

Evidence 701. Specifically, it must be “(a) rationally based on the perception of

the witness, (b) helpful to a clear understanding of the witness’ testimony or the

determination of a factin issue, and (c) not based on scientific,technical, or other

specialized knowledge within the scope of Rule 702.”53

Thomas does not contend that Detective Garcia’s testimony is an

impermissible lay opinion either because it is unhelpful or because it deals with

specialized knowledge within the scope of Rule 702. Rather, he contends that

the testimony is not rationally based on Detective Garcia’s perceptions. This

argumentis meritless. The record amply supports Detective Garcia’s first-hand

knowledge ofthe amounts of crack consumed by users.54 Although Thomas cites

United States v. Garcia, and although that case may well stand for the

proposition that a lay witness cannot offer opinion testimony as to why a
No. 07-51438

55 291 F.3d 127, 140-42 (2d Cir. 2002). 

56 United States v. McDowell, 498 F.3d 308, 312 (5th Cir. 2007). 

57 United States v. Gulley, 526 F.3d 809, 816 (5th Cir. 2008) (per curiam) (internal

quotation marks omitted), petition for cert. filed, 76 U.S.L.W. 2784 (U.S. June 12, 2008) (No.

07-11424). 

17

defendant might speak about particular matters in code,55 nothing in Garcia can

be read as preventing a witness from offering non-expert opinion testimony

about patterns of conduct with which he has extensive first-hand experience

(e.g., the frequency with which a specific amount of a given drug is, as an

empirical matter, associated with distribution rather than personal use). Had

Detective Garcia testified as to why Thomas might have been in possession of

this particular quantity of crack or about what Thomas intended to do with it,

the analysis under Garcia might be different. But Detective Garcia offered his

opinion about a theoretically ascertainable empirical fact, which was rationally

connected to his first-hand observations. 

On this record, the district court did not abuse its discretion when it

allowed Detective Garcia to testify about the concordance between distribution

quantities and the amount of crack Thomas possessed during the May 1 offense.

C. Sufficiency of the Evidence

1. Standard of Review

Thomas timely moved for a judgment of acquittal on both counts. Such a

motion challenges the sufficiency of the evidence. As that motion preserved the

sufficiency-of-the-evidence issue for appellate review, we review the denial of the

motion for acquittal de novo.56

Albeit classified as de novo, our sufficiency-of-the-evidence review is

“highly deferential to the verdict.”57 We “will affirm . . . if a reasonable trier of

fact could conclude . . . the elements of the offense were established beyond a

reasonable doubt, viewing the evidence in the light most favorable to the verdict
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58 McDowell, 498 F.3d at 312 (alterations in original) (internal quotation marks

omitted).

59 United States v. Bryant, 770 F.2d 1283, 1288 (5th Cir. 1985).

60 As there is no serious contention that the weight of the crack from the May 1 offense

was inaccurately determined, this discussion will treat the May 1 and February 28 offenses

as essentially the same crime, with different facts. 

61 United States v. McKnight, 953 F.2d 898, 901 (5th Cir. 1992) (“[A] person has

constructive possession if he knowingly has ownership, dominion, or control over the

contraband itself or over the premises in which the contraband is located. Constructive

possession need not be exclusive, it may be joint with others, and it may be proven with

circumstantial evidence. However, more evidence than mere physical proximity of the

defendant . . . is required.” (internal citations and footnote omitted)). 

62 United States v. Aguilar, 503 F.3d 431, 434-35 (5th Cir. 2007) (per curiam) (citing

United States v. Mata, 491 F.3d 237, 242 (5th Cir. 2007)), cert. denied, 128 S. Ct. 1304 (2008).

63 United States v. Kates, 174 F.3d 580, 582 (5th Cir. 1999) (per curiam). 

64 United States v. Smith, 91 F.3d 1199, 1201 (8th Cir. 1996). 

65 United States v. Bell, 954 F.2d 232, 235 (4th Cir. 1992), overruled on other grounds,

United States v. Burgos, 94 F.3d 849 (4th Cir. 1996) (en banc). 

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and drawing all reasonable inferences from the evidence to support the

verdict.”58 This standard of review does not depend on whether the evidence

presented at trial is direct or circumstantial.59

2. Analysis

To be convicted of possession with intent to distribute crack,60 a violation

of 21 U.S.C. § 841(a)(1) (Supp. V 2005), a defendant must knowingly possess the

crack, either actually or constructively,61 and must intend to distribute it.62 A

jury may infer intent to distribute based solely on possession of an amount too

large to be used by the person in possession.63 The Eighth Circuit has held that

9.9 grams of crack “far exceeds the amount attributable to personal use.”64 The

Fourth Circuit came to the same conclusion about “thirteen plus” grams.65 We

have held that 19.67 grams, together with a DEA agent’s testimony that the

amount “was almost surely intended for distribution,” created “at least a jury
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66 Kates, 174 F.3d at 583. 

67 Id. at 582. 

68 United States v. Fuchs, 467 F.3d 889, 904 (5th Cir. 2006) (internal quotation marks

omitted), cert. denied, 127 S. Ct. 1502 (2007). 

69 United States v. Hunt, 129 F.3d 739, 742 (5th Cir. 1997). 

70 United States v. Ayala, 887 F.2d 62, 67 (5th Cir. 1989) (internal quotation marks

omitted). 

71 129 F.3d at 742-44. 

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question regarding intentto distribute.”66 Nevertheless, “[p]ossession of a small

quantity of illegal drugs consistent with personal use does not support an

inference of intent to distribute in the absence of other evidence, such as drug

paraphernalia, guns, or large quantities of cash.”67

“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 ofthe evidence.”68“If, however,

the evidence gives equal or nearly equal circumstantial support to a theory of

guilt and to a theory of innocence, [this court] will reverse the conviction, as

under these circumstances a reasonable jury must necessarily entertain a

reasonable doubt.”69 It is proper for fact finders to “use their common sense and

evaluate the facts in light of their common knowledge of the natural tendencies

and inclinations of human beings.”70

In United States v. Hunt, we reversed a conviction in which nothing but

the quantity of crack possessed supported a finding of intent to distribute.71 We

held in Hunt that, alone, evidence of possessing 7.998 grams of crack is

insufficient, as a matter of law, to support a finding of intent to distribute. The

only other evidence in Hunt to support intent to distribute included a razor

blade, blunts, a gun, and the absence of smoking pipes or other such use

instruments. We concluded that this evidence was also consistent with personal
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72 United States v. Majors, 328 F.3d 791, 796 (5th Cir. 2003) (per curiam). 

73 942 F.2d 1324, 1325 (8th Cir. 1991). 

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use and determined that a reasonable jury could not have found that the

defendant intended to distribute the crack beyond a reasonable doubt. We have

also held, however, that there is no specific minimum amount of a drug that is

required to establish an inference of an intent to distribute.72

a. Possession - May 1 Offense

If all of Officer Jurado’s testimony were believed, as it must be for this

variety of highly deferential review, he saw Thomas with a flimsy baggie; he saw

Thomas flee; during the chase, he saw Thomas throw a flimsy object; a

subsequent search, shortly after the chase, ofthe area where Officer Jurado saw

Thomas throw the flimsy object turned up a flimsy object, a bag; and the bag

contained 12.71 grams of crack. A reasonable trier of fact could conclude from

this evidence that Thomas had the crack in a bag in his pocket during the chase

and that he threw it over a fence in an attempt to prevent Officer Jurado from

discovering it. This is sufficient evidence to demonstrate actual possession by

Thomas before and during the chase. 

The Eighth Circuit’s case cited by Thomas, United States v. Townley,

73 is

not to the contrary. There, no cocaine was found in the defendant’s apartment,

and the only connection between the defendant and the owner of the apartment

where the cocaine was found was a picture and some testimony that they knew

each other. Because the defendant did not have actual possession of the cocaine,

the court would have had to determine that he had constructive possession over

the contraband to affirm his conviction. The defendant did not have “ownership,

dominion, or control over the contraband itself or over the premises in which the
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74 United States v. McKnight, 953 F.2d 898, 901 (5th Cir. 1992).

75 Townley, 942 F.2d at 1327.

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contraband [was] located,”74 and therefore did not have constructive possession.75

In this case, by contrast, Thomas’s possession was actual. Assuming the jury

believed Officer Jurado, Thomas actually possessed the crack until he threw it

away, likely in an attempt to hide it or at least to terminate his actual

possession. 

b. Intent to Distribute - May 1 Offense

There is less, but nevertheless sufficient, evidence that Thomas intended

to distribute the crack. No drug paraphernalia was found on Thomas, but one

of the women waiting for him in a car in the hotel parking lot had a crack pipe.

While in possession of a large quantity of crack, Thomas approached the car in

which the woman was waiting for him. Even though it is not impossible that the

quantity possessed by Thomas could have been for his personal use, he had been

convicted previously for delivery of cocaine, which, as discussed above, is

probative of intent. 

Taken in the light most favorable to the verdict, a reasonable jury could

have concluded beyond a reasonable doubt that a defendant (1) who was twice

before convicted of cocaine delivery and (2) who approached a car in which

another person was waiting for him, (3) which other person was in possession of

a crack pipe, but the defendant was not, and (4) the defendant was in possession

of an amount of crack greater than amounts we have determined to be legally

inadequate and within the range of amounts determined by this and other courts

to be evidence of intent to distribute, intended to distribute the crack.

Accordingly,there is sufficient evidence to support Thomas’s conviction in count

one of the indictment.

c. Possession - February 28 Offense
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76 Thomas highlights what he perceives to be an inconsistency between being saddled

with evidence of intent to distribute for possession of a large quantity and then being saddled

with intent to distribute a small quantity. He misses the crucial distinction that, although a

large quantity may support a finding of intentto distribute because the quantity is inconsistent

with personal use, many small parcels of drugs support a finding of intentto distribute because

their packaging is inconsistent with personal use. 

77 This amount probably does not qualify as the “large quantities of cash” that we have

previously identified as an indicium of intent to distribute. 

22

The evidence, viewed in the light most favorable to the verdict, permits a

reasonable trier of fact to conclude beyond a reasonable doubt that Thomas

possessed crack on February 1, 2007. If Officer Thompson is believed (and this

standard of review requires the court to credit his testimony), Thomas threw

something white, which from a distance looked like it might be crack, into a

truck in which crack was immediately discovered in the general vicinity where

Thomas had just thrown the white “something.” 

d. Intent to Distribute - February 28 Offense

Thomas’s prior convictions for cocaine distribution are probative of his

intent to distribute on February 28, just as they are for the May 1 offense. The

case for intent otherwise is even clearer, as Thomas was seen at the truck

talking to passengers who were in possession of a device for smoking crack, and

he threw the crack he possessed into their truck. 

Although the amount of crack involved in the February 28 offense is

considerably less than the quantity involved in the May 1 offense, the crack at

issue on February 28 had been divided into three rocks, conceivably indicating

that it was intended for distribution.76 Officer Thompson observed a hand-tohand transaction consistent with a narcotics deal between Thomas and the

occupants of the truck. Despite being unemployed and having no supporting

evidence of how he came by the money, Thomas possessed $310.77 If Corporal

Anaya’s testimony is believed, he observed one of the truck’s occupants

attempting to swallow some crack. Taken together, these facts are sufficient to
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23

permit a reasonable trier of fact to conclude beyond a reasonable doubt that

Thomas committed each of the elements of the charged offense, including intent

to distribute the crack.

III. CONCLUSION

For the foregoing reasons, Thomas’s convictions by a jury on both

counts of the instant indictment are AFFIRMED.