1 NO T R EC OM M EN DE D F OR F UL L- TEX T P UB LIC AT ION F ile Nam e: 07a0400n.06 F iled: Jun e 14, 2007 No. 06-5181 UN ITED STA TES C OU RT OF AP P EA LS F OR THE SI XT H C IR CU IT UNITED STAT ES O F AMERICA, P laintif f-App ellee,

v. CL YD E JO NE S, Defendan t-Appellant. ) ) ) ) ) ) ) ) ) ON AP P EA L F RO M THE UNITED STAT ES DIS TRICT COURT F OR THE E ASTERN DI STR IC T OF TEN NE SSEE

BEF OR E: KEITH , BA TC HELD ER , a nd M OORE, C ir c uitJudg e s. P ER CURIAM . After

a tw o -d ay t rial, a jury

convicted D efe ndant, Cly de Jones, of po sse ssi on

of c ra c k c oc a ine wi th t

he int e nt t o d ist

ri bu te mor e tha

n 50 g ra ms. He wa s sen te nc e d to life imprisonment without the possibi lity of par ole. J ones now appeals his conviction, contending that (1) the e vidence was insuffic ient to con v i ct, and (2) the district cour t’s supplemental jury instruction was def

icient. For

the re asons below, we AF F IRM

.

I Armed w ith a war

rant, Chattanoog a l a

w e n f o rce ment office rs sea

rche d J ones’s home on June 23, 2005 and, alongwith J ones and his g irlfriend ( L akoy a Weams), o ff i ce rs fo und 478 g rams of

cra ck coc aine throug hout the home. Off icer s found: (1) a small ba g of coca ine and dig ital scales in a purse in the be droom; (2) a larg e quantity

of coc aine a

nd $13,849 in cash in a closet; and (3) another larg e quantity o f co caine in a shoe box. J ones admitted that the e ntirety of the drug s and2

c a shbe lon g e d to him . A ft e r w a ivi nghis Miranda ri g hts , J on e s sig ne d a wr itt e n co nf e ssi on to t his eff ect. The waiver

was pre pare d by

one of the office rs. Ho pin g to r e c ant h is confe ssi on a t tr ia l, Jon e s te sti fi e d th a t th e dr ug s in fa c t be lon g e d to Wea ms a nd he ha d c on fe sse d to ow ne rs hip on ly “ to p ro te c t” Wea

ms’ s c hil dren fr om s e e ingthe ir mother inca

rce rate d. (JA 81-83.) Weams testified t hat J ones knew she sol d drug s from his home, and she often relied on his protec tion while s he conducted her illega l business. (J A 116.) (Jones’s friends w ere also some of he r clients.) Ba sed on this testimony , the Gover nment reque sted that a st andar d aiding -and- abetting jury instruction be included in the jury char g e. J ones’s counsel did not object. Afte r c o m m en ci ng deliberations, the jury

sent the cour

t a note, asking , “Can we the jury find the def

en d an t g uilty

of aiding and abetting without believing the defendant guilty of poss ession of a c ontrolled substance with the intent to distribute? ” (JA 141.) Wit h approva l from the parties, the c ourt responde d: “You

may fi nd the de fe nd ant guil ty

of po sse ssi on

of a c ontr oll e d s ub sta

nc e wi th t he int e nt to d ist

ri bu te it if y ou fi nd be y on d a re a so na ble do ub t th a t he a ide d a

nd a be tte d ano the r pe rs on to c omm it the c ri me in acc ordanc e with the jury instructions.” Id. The jury returne d a g uilty

verdic t, and J o n es was sentenc ed to a life of imprisonment. J ones appea ls his conviction contending that (1) the e vidence was insuffic ient to convict and (2) the a iding a

nd abetting instruction was def icient. He doe s not take issue with his sentence

. II A. Suf fi ciency of the Evidence “In deter mining the suff

iciency of the e vidence to s u p p o rt a gu ilty verdic t ‘the re levant question is w hether , afte r viewing the evidenc e in the light most favora ble to the prosec ution, any3

ratio na l tr ie r o f f

a c t c ou ld h a ve fo un d th e e sse nti a l e le me nts of the c ri me be y on d a

re a so na ble doubt.’” United States v. Pe arce , 912 F.2d 159, 161 ( 6th Cir. 1990) (citation omitted). Viewingthe evidenc e in a lig ht most favorable to the Gover nment, t h er e is sufficie nt

e vid e nc e to a llo w a

re a so na ble jur y to f ind Jone s g uil ty of po sse ssi on wi th int e nt t o d istri bu te . F ir st

and fo re mos t, Jon e s c on fe sse d to ow ne rs hip of the dr ug s and si g ne d a

wr itt e n c on fe ssi on

to t his eff ect. In an attempt to inva lidate his sig ned confe ssion, Jones a rg ues that he “ did not write his own confe ssion.” (Appe llant’s Br . 13.) Howe ver, it is unclea r why this matters: J o n es ci t es no prec edent that r equire s defe ndants to write out their conf essions. See id. Moreove r, eve n if we w ere to disreg ard Jones’s signe d confe ssion, the jury still hear d testimony from off icer s to whom J ones

ve rbal ly con fes se d o wn e rs hip of the dr ug s, and the jur y wa s p e rm itt e d to c re dit

tho se of fi c e rs ’ testimonies in it s calc ulation of J ones’s guilt. See U nite d S t a t es v. G ibbs , 1 82 F .3 d 4 08 , 4 24 (6 th Cir. 1999). Mo re ov e r, Jone s’ s e xcu se fo r f a lse ly c on fe ssi ng — that he wa

nte d to “ save Ms. Wea

ms from losing her children” (Appellant’s Br. 15) — was withi n the jury ’s providenc e to eva luate, and we, a s an appe llate cour

t, may not second guess the jury ’s cr edibility deter mination. See G ibbs , 182 F.3d at 4 2 4

. Finally , there was suff icient evidenc e to per

mit the jury

to permissibly

infer Jones’s int en t to distribute the drug s based solely on the shee r amount of dr ug s—478 g rams to be exact—found in his home. See Un ite d S tat es v . W

hit e , 932 F.2d 588, 590 ( 6th Cir. 1991) (per curiam). Under an alternative theory of guilt, there is sufficie nt evidenc e that J ones aide d and abe tted Weams in her unlawf

ul endea vor, and thus is g uilty

as a pr incipal. For example, ba sed on J ones’s

and Wea ms’ s te sti mon ie s, the jur

y le arn e d th a t Jone s a llo we d Wea ms to r un he r i lle g a l e nte rp ri se4

from his home. He also provided W eams with protec tion during her drug s deals (which she re lied on (JA 116-17)), as we ll as introduced he r to potential clients (his frie nds). (JA 112-15.) Henc e, bec ause Jones lawfully confe ssed to his possession of the larg e quantity of drug s and, in any event, be cause t h er e wa s u n contested evidence of Jones’s aiding a nd abetting of the po sse ssi on

of the dr ug s, we fi nd

that a re a so na ble jur y c ou ld f ind Jone s g uil ty

of po ss ess ion w ith intent to dist ribute. B. Su ppl em ental Aidin g and Ab ett ing Ju ry Instruction Next, J ones asse rts that the trial cour t’s supplemental instructi o n i n re s p onse to the jury ’s note was in e rror . Howeve r, af ter a b ri ef ex chang e with the cour t, J ones conse nted to the supplemental instruction at trial. (JA 141-43.) He nowcontends that “ [t ]he [ c]ourt should have instructed the jury

of the re quisite intent required f or an a ider a

nd abetter .” (A

pp el l an t ’s Br. 18.) B e c a us e Jone s f

a ile d to su sta in th is ob

jec tion at tr ia l, t

he Court re vie ws his ob

je c tio n f or “ pla in

err or.” See U

nited States v. Combs , 3 3 F .3 d 6 67 , 6 69 (6 th C ir . 1 99 4) . B ut, fo r t he re to b e “ pla in

err or,” the re must be f

irst an “e rror .” Id. And, for the following rea sons, there is none he re. J ones’s only

objection t o t h e suppl emental instruction—that the tria l court should have instructed the jury

on the re quisite intent required f or aiding and abe tting—simpl y o v er looks the depth of the c ourt’s instruction. I n responding to the jury ’s question, the trial court stated, “You may find the De fenda

nt guilty of possession of a c ontrolled substance with the intent to distribute if y ou find, by bey ond a rea sonable doubt, that he aided and abetted another person to commit a cr ime in accordanc e with the j u r

y i nstructions .” (JA 141) (empha sis added.) The court’s r efe rra l to “the [i nitial] jury instructions” was a permissible response to the j ury ’s questi on, g iven t hat “the subje ct5

of [the jury ’s] inqui ry

ha[d] been f

ully cover ed in the cour

t’s [i nitial] instructions.” S e e United States v. Nunez , 889 F.2d 1564, 1569 ( 6th Cir. 1989). And, had the jur

y ref err ed to the initial instructions (as the cour t instructed), it would have found that “[it] may

also find [J ones] guilty if he intentionally he lpe d o r e nc oura g e d s ome on e e lse to c omm it the c ri me . Ape rs on who do es th is is c a lle d a n a ide r a nd a be tto r. ” (JA 13 7) (e mph a sis added. ) T h e j ury

also would have lear

ned that the c ourt’s initial instructions said, “What the g overnme nt must prove is that the defe ndant did something to he lp or enc ourag e the c rime with the int e nt that the cr ime be committed.” Id. (empha sis added.) H ence , a re fer en ce t o t h e i nitial jury ins tr uc tio ns no t on ly re sp on de d to the jur y ’s inq uir y , bu t a lso re fute s Jone s’ s ob je c tio n in t

his a pp e a l. III Acc ording ly , beca

use we find sufficie nt evidenc e for a jury to convict J ones of possession of cr ack coca ine wit h the i ntent to distribute more than 50 g rams, and beca use we see no e rror

in the trial court’ s supplemental jury instruction, we AF F IRM J ones’s c onviction.