UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 94-40695

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WENDELL WAYNE HARRISON,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Texas

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(May 31, 1995)

Before GARWOOD, JOLLY, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Wendell Wayne Harrison challenges his convictions for

possession with intent to distribute cocaine base and using or

carrying a firearm during the commission of a drug-trafficking

offense, contending that the evidence is insufficient and that a

lesser-included offense instruction should have been given on the

drug charge. We AFFIRM.

I.

Harrison was indicted in January 1994 for possession with the

intent to distribute five grams or more of cocaine base, in

violation of 21 U.S.C. § 841(a)(1), and for using or carrying a

firearm during and in relation to a drug-trafficking offense, in

violation of 18 U.S.C. § 924(c)(1). A jury found him guilty on

both counts; and he was sentenced, inter alia, to 135 months
1 As noted, Harrison did not present any evidence. When the

Government rested, he moved for judgment of acquittal, Fed. R.

Crim. P. 29(a), thereby preserving this issue.

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imprisonment on the drug offense, with a 60-month consecutive term

on the firearm count. 

II.

As noted, two issues are before us: whether the evidence is

insufficient; and whether an instruction on the lesser-included

offense of simple possession of a controlled substance should have

been given. Harrison did not present evidence at trial.

A.

To establish a violation of 21 U.S.C. § 841(a)(1), the

Government must prove, beyond a reasonable doubt, that the

defendant "knowingly possessed contraband with the intent to

distribute it". E.g., United States v. Inocencio, 40 F.3d 716, 724

(5th Cir. 1994). Harrison does not contest the knowing possession

element; he asserts only that the evidence is insufficient to prove

that he intended to distribute the cocaine seized at his

residence.1 Our standard for reviewing challenges to the

sufficiency of the evidence is well-established:

In reviewing an appeal based on insufficient

evidence, the standard is whether any reasonable

trier of fact could have found that the evidence

established the appellant's guilt beyond a

reasonable doubt. The jury retains sole

responsibility for determining the weight and

credibility of the evidence. As such, we must

construe all reasonable inferences from the

evidence in favor of the verdict. A review

concentrates on whether the trier of fact made a

rational decision to convict or acquit, not whether

the fact finder correctly determined the

defendant's guilt or innocence. Further, the
2 A narcotics officer testified that the "dime" bags were small

bags, containing five grams or less of marijuana. 

3 There was testimony that a one-ounce crack cocaine cookie

sells for about $750. 

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evidence need not exclude every reasonable

hypothesis of innocence.

United States v. Jaramillo, 42 F.3d 920, 922-23 (5th Cir. 1995)

(emphasis added). For example, "[i]ntent to distribute may be

inferred from the value and quantity of the substance possessed."

United States v. Casilla, 20 F.3d 600, 603 (5th Cir.), cert.

denied, ___ U.S. ___, 115 S. Ct. 240, 255, 361 (1994). However,

"proof of intent to distribute does not require the presence of a

certain minimum quantity of controlled substance". United States

v. Munoz, 957 F.2d 171, 174 (5th Cir.), cert. denied, ___ U.S. ___,

113 S. Ct. 332 (1992). Such intent "may be inferred from the

presence of distribution paraphernalia, large quantities of cash,

or the value and quality of the substance". Id.

The Government introduced evidence that, in July 1993, during

the execution of a search warrant (obtained with the assistance of

a confidential informant) at Harrison's residence, officers found

cocaine and marijuana residue, a canister containing marijuana

residue, and "dime" bags of marijuana, on the top of the dresser in

Harrison's bedroom.2 In the top drawer of the dresser, officers

found crack cocaine "cookies", one of which had been cut into $50

"slabs" and $20 "rocks", and $170 in currency.3 A forensic analyst

testified that the cocaine base seized from Harrison's residence

was 81% pure and weighed 49.32 grams. A loaded .22 caliber pistol
4 The government attempted to introduce evidence that Harrison

did not pay child support, in an attempt to show that the money

found on him and in his residence was proceeds from drugtrafficking, but the district court refused to allow it. 

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and ammunition were found in the same drawer, next to the cocaine.

Harrison's driver's license was found on the nightstand in the same

room. Arrested near his residence, Harrison was carrying a .22

caliber revolver and approximately $155 in cash. 

Pearl Gilbert, Harrison's former mother-in-law, testified that

Harrison lived with his uncle, who was ill; that she worked at

Harrison's residence about three and one-half hours a day, five

days a week, taking care of the uncle; that she was there when the

warrant was executed; that, when Harrison picked her up each

morning to take her to work, he usually was wearing his robe, and

would go back to bed when they arrived at his residence; and that

he worked as a hairdresser three days a week, and sometimes less.4

She testified further that Harrison had "sort of a sure thing,

cocky-like attitude" about the case against him, and had told her

that the Government did not have a case because he should have been

arrested in his residence. 

One of the narcotics officers who executed the search warrant

testified that the residue on top of the dresser indicated that

narcotics were being made ready for sale; that it was not unusual

to find a weapon with contraband when investigating drug dealers,

because they like to keep weapons around them to protect their

business; and that it was not unusual to find large amounts of cash

around drug dealers. On cross-examination, the officer testified
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that it would not be impossible for an individual to use two to

three grams of crack cocaine a day, and that, if so, the 49 grams

seized from Harrison's residence could have been used in

approximately two weeks. The officer also testified on cross that

the marijuana could have been intended for personal use. On

redirect, however, the officer testified that, based on his

experience and training, he had no doubt that Harrison was a

dealer, and that the crack cocaine in his possession was intended

for distribution. 

The Government called a DEA agent as an expert witness on

drug-trafficking and firearm usage. He testified that, based on

the amount of crack cocaine seized and the way it was packaged and

cut, Harrison intended to distribute it; and that it would not be

unusual for a drug dealer to possess a .22 caliber firearm, such as

the one found in the drawer with the cocaine, to protect and

facilitate drug-trafficking activities. On cross-examination, the

agent testified that, if an individual used a gram of crack cocaine

three times a day, the individual could use the amount seized from

Harrison in a couple of weeks. On redirect, however, he testified

that the street value of the cocaine seized from Harrison was

$2,800, and that, because it consisted of a $750 cookie and another

cookie cut into $50 slabs, he believed that the cocaine was

intended for distribution, rather than personal use. 

Considering this evidence in the light most favorable to the

Government, including the reasonable (and obvious) inferences that

could be drawn from it, we conclude that a rational juror could
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have found beyond a reasonable doubt that Harrison possessed the

crack cocaine with the intent to distribute it, and that the .22

caliber pistol found in the drawer next to the cocaine was used to

facilitate his drug-trafficking activities.

B.

Rule 31 of the Federal Rules of Criminal Procedure provides,

in pertinent part, that "[t]he defendant may be found guilty of an

offense necessarily included in the offense charged". Fed. R.

Crim. P. 31(c). "The purpose of this protection is to prevent

juries from improperly resolving their doubts in favor of

conviction when one or more of the elements of the charged offense

remain unproven, but the defendant seems plainly guilty of some

offense." United States v. Browner, 889 F.2d 549, 551 (5th Cir.

1989) (Browner I) (emphasis in original). Harrison contends that

the district court erred by overruling his objection to the jury

charge; he maintained that it should include an instruction which

would have allowed the jury to find him guilty of the lesserincluded offense of simple possession of a controlled substance. 

The Supreme Court has stated that a defendant is entitled to

a lesser-included offense instruction when some of the elements of

the crime charged constitute a lesser crime, there is an

evidentiary basis for a finding of guilt on the lesser offense, and

"the charged greater offense requires the jury to find a disputed

factual element which is not required for conviction of the lesserincluded offense". Sansone v. United States, 380 U.S. 343, 350

(1965). "[T]wo independent prerequisites" must be met before a
5 See also United States v. Buchner, 7 F.3d 1149, 1152-54 (5th

Cir. 1993), cert. denied, ___ U.S. ___, 114 S. Ct. 1331 (1994);

United States v. Howard, 991 F.2d 195, 198 (5th Cir.), cert.

denied, ___ U.S. ___, 114 S. Ct. 395 (1993); United States v.

Greenwood, 974 F.2d 1449, 1459 (5th Cir. 1992), cert. denied, ___

U.S. ___, 113 S. Ct. 2354 (1993); United States v. Moore, 958 F.2d

646, 649-50 (5th Cir. 1992); United States v. Valencia, 957 F.2d

1189, 1196-98 (5th Cir.), cert. denied, ___ U.S. ___, 113 S. Ct.

254 (1992); United States v. Kim, 884 F.2d 189, 194 (5th Cir.

1989); United States v. Williams, 775 F.2d 1295, 1301-02 (5th Cir.

1985), cert. denied, 475 U.S. 1089 (1986); United States v.

Collins, 690 F.2d 431, 437-38 (5th Cir. 1982), cert. denied, 460

U.S. 1046 (1983); United States v. Bey, 667 F.2d 7, 11 (5th Cir.

1982); United States v. Henderson, 588 F.2d 157, 160 (5th Cir.),

cert. denied, 440 U.S. 975 (1979); United States v. Flint, 534 F.2d

58, 60 (5th Cir.), cert. denied, 429 U.S. 924 (1976); United States

v. Rogers, 504 F.2d 1079, 1084 (5th Cir. 1974), cert. denied, 422

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defendant is entitled to an instruction on a lesser-included

offense: "(1) the elements of the lesser offense must be a subset

of the elements of the charged offense; and (2) the evidence at

trial must be such that a jury could rationally find the defendant

guilty of the lesser offense, yet acquit him of the greater".

Browner I, 889 F.2d at 550-51; United States v. Deisch, 20 F.3d

139, 142 (5th Cir. 1994). 

Our cases have not stated explicitly the standard of review

for a challenge to the refusal of a lesser-included offense

instruction. See, e.g., United States v. Garcia, 27 F.3d 1009,

1014-15 (5th Cir.) (standard of review unstated), cert. denied, ___

U.S. ___, 115 S. Ct. 531 (1994); Deisch, 20 F.3d at 142-53 (same);

United States v. Doyle, 956 F.2d 73, 74-76 (5th Cir. 1992) (same);

United States v. Browner, 937 F.2d 165, 167-72 (5th Cir. 1991)

(Browner II) (same); Browner I, 889 F.2d at 550-55 (same); United

States v. Chase, 838 F.2d 743, 746-47 (5th Cir.) (same), cert.

denied, 486 U.S. 1035 (1988).5 For the two-part test, quoted
U.S. 1042 (1975); United States v. Methvin, 441 F.2d 584, 585-86

(5th Cir.), cert. denied, 404 U.S. 839 (1971); Escobar v. United

States, 388 F.2d 661, 665-66 (5th Cir. 1967), cert. denied, 390

U.S. 1024 (1968).

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supra, for when a lesser-included offense instruction should be

given, our court appears to have applied de novo review for the

first prong (whether elements of lesser are subset of greater), and

an abuse of discretion standard for the second (whether jury could

rationally find lesser and acquit on greater). See Deisch, 20 F.3d

at 142-53; United States v. White, 972 F.2d 590, 596 (5th Cir.

1992) (parties agreed that elements of lesser-included offense were

subset of elements of charged offense; abuse of discretion standard

of review expressly applied in determining whether rational jury

could have found that defendants possessed drugs but had no intent

to distribute them), cert. denied, ___ U.S. ___, 113 S. Ct. 1651

(1993); Browner I, 889 F.2d at 550-51. See also United States v.

Vaandering, 50 F.3d 696, 703 (9th Cir. 1995) (clarifying apparent

inconsistency in case law to hold that first prong of inquiry is

reviewed de novo and second for abuse of discretion).

Whether, pursuant to de novo review, the elements of the

lesser offense are a subset of the elements of the charged offense

is not in dispute. The Government agrees correctly that the first

prong of the test is satisfied.

The second part of our inquiry requires determining whether

the district court abused its discretion in concluding that, based

on the evidence, a jury could not rationally find Harrison guilty

of simple possession, yet acquit him of possession with the intent
6 The primary thrust of Harrison's defense at trial was that he

did not possess the cocaine. As noted, Harrison did not testify or

otherwise present any evidence, and defense counsel did not argue

to the jury that Harrison possessed the cocaine for his personal

use rather than for distribution. In his opening statement,

defense counsel stated that he intended to show that the cocaine

was placed in Harrison's room by the confidential informant;

likewise, in his closing argument, counsel stated that the

informant placed the cocaine in Harrison's home. Nevertheless, "it

is well established that a criminal defendant may raise

inconsistent defenses, and is entitled to an instruction on any

defense or lesser-included offense whenever there is evidence

sufficient for a reasonable jury to find in [his] favor, even when

the defense and lesser-included offense are inconsistent with each

other". Browner I, 889 F.2d at 555. However, in Browner I, unlike

the present case, denial of the element present in the greater but

not in the lesser offense (there, the intent to inflict bodily

injury) "was the primary thrust of her [the defendant's] defense

and of her testimony." Id.

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to distribute.6 To show error, Harrison relies on the crossexamination of the narcotics officer and DEA agent; both testified

that approximately 49 grams of crack cocaine, the amount seized

from Harrison's residence, could be used by a single individual in

approximately two weeks, and that the marijuana found in Harrison's

bedroom could have been intended for personal use rather than for

distribution. 

This testimony, when considered in isolation, arguably might

support a lesser-included offense instruction for simple

possession; but, when considered in the context of the other

evidence, it does not. The testimony was on cross-examination; the

questions dealt with a hypothetical user, who used one gram of

crack three times a day. There was no evidence that Harrison used

crack cocaine, or that he used three grams a day, and the

hypothetical questions did not ask the Government witnesses to

assume that Harrison had such a habit. Moreover, the hypothetical
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questions did not encompass the facts and circumstances surrounding

Harrison's possession of the crack cocaine, such as his possession

of a whole $750 cookie and $50 slabs with a street value of nearly

$3,000, and the presence of the loaded weapon and cash in the same

drawer as the crack. 

Considering those facts and circumstances, as well as the same

witnesses' unrebutted testimony that such facts and circumstances

were consistent with an intent to distribute and not with

possession for personal use, no rational juror could conclude that

Harrison possessed the crack for his personal use, with no intent

to distribute it. Again, "[w]hile a defendant's request for a

lesser-included offense charge should be freely granted, there must

be a rational basis for the lesser charge and it cannot serve

merely as a device for defendant to invoke the mercy-dispensing

prerogative of the jury." United States v. Collins, 690 F.2d 431,

438 (5th Cir. 1982), cert. denied, 460 U.S. 1046 (1983) (internal

quotation marks and citation omitted). Because a rational basis

for the lesser-included offense instruction was lacking, the

district court did not abuse its discretion in refusing it.

III.

For the foregoing reasons, the judgment is

AFFIRMED.