United States Court of Appeals Fifth Circuit 

## FILED July 9, 2007 Charles R. Fulbruge III Clerk 

## In the 

# United States Court of Appeals for the Fifth Circuit

_______________


### m 06-41179 Summary Calendar

_______________



### U NITED 

### S TATES OF 

### AMERICA 

### , Plaintiff-Appellee,

VERSUS



### G REG 

### S TODDARD 

### , Defendant-Appellant.



## _________________________ Appeal from the United States District Court fo r the Eastern District of Texas 

### m 1:05-CR-151



## ______________________________

Before S MITH , WIENER , and O WEN , Circuit Judges.

J ERRY E. S MITH , Circuit Judge: * Greg S toddard was convicted by a jury of possession of a fir earm in furtherance of a drug traf ficking crime and possession of a controlled substance wit h int ent to distribute. He

* Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be published (continued...) * (...continued)

and is no t precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4.appeals his conviction, arguing that there was

insufficient evidence to sustain the verdict and th at the identification proce dures used by the pol ice were unduly suggestive. 1 Finding no error, we affirm.

I. Abo ut 9:30 in the evening, a truck left the side of the road and careened int o a tree. Two wit nesses approached the truck and observed it s sole occupant em

erge in a daze. Both wit nesses inquired as to the driver’ s health, and one dialed 911. By t he time t he police arrived, the driver had wandered away.
Inside the truck, police found a loaded .38 caliber pistol in t he glove box, a TEC-9 semiautomatic pistol in t he flo orboard, a l arge number of plastic bags, a scale, a grinding machine, and, in the center console, a large
amo unt of cry stal met hamphetamine, and $1,580 in currency divided up int o on e -hundred-doll a r increments. Pol ice also found a shirt and a pill bottle wit h Stoddard’s name on them and two notebooks bearing his name and address.

Both wit nesses gave an identification of the driver as a white male in his mid-forties with shoulder-length salt and pepper hair, wearing
a green tee shirt and blue jeans. Stoddard was arrested shortl

y thereafter at a nearby convenience store wearing a green tee shirt and jeans. The sum of $4,856 was fo und on his person, packaged in similar hundred-dollar increments. He was br ought to th e scene of the accident but disclaimed knowledge of the truck or the it ems inscribed with his name.

One of the wit nesses encountered Stoddard at the convenience store before the arrest and returned to identify him at the scene. Ano ther wit ness encountered Stoddard and an of ficer lat er th at night at the hospital and positively identified Stoddard a week lat er from a singlephoto di splay.

Stoddard pleaded not guilt y to a threecount indict ment and was convicted of on e count of fir earm possession and one count of possession of met hamphetamine wit h int ent to distribute, a thir d count having been dismissed per government mo tion. Stoddard appeal s, claiming th at the evidenc e was insufficient as a mat ter of law on both counts and that the wit ness identifications should have been suppressed because the pol

ice pro cedures were unduly suggestive.

II. We fir st c onsider Stoddard’s evidentiary objection, because the wit ness identifications
were a key part of the government’s case in chief. The district court conducted an identification hearing outside the presence of the jury and ruled th at t h e wit nesses could identify Stoddard in their testimo ny. “When reviewing
a rul ing from a pretri al suppression hearing, this Court must give credence to the credibilit y choices and findings of fact of the d ist rict court unless clearly erroneous.” U nited States
v. Shaw , 894 F.2d 689, 691 (5th C ir. 1990) (citations omitted). Admissio n of evidence is generally revie wed f

or abuse of discretion. United States v. Rogers , 126 F.3d 655, 657 (5th Cir. 1997).

The Due Process Clause fo rbids the admis1 Stoddard asserts that the court erred by classifying the methamphetamine he was convicted of possessing as “ice.” The sentencing guidelines define “ice” as “d-metha mphetamine hydrochloride of at l east 80% purity,” s ee U.S.S.G. § 2D1.1; th e jury, on the special verdict form, found that Stoddard possessed “d-methamphetamine hcl” of at least 80% purity. “Hcl” is a com mon chemical abbreviation for hydrochloride, and the jury heard testimony about the abbreviation. Stoddard’s argument is without merit.sio n of unreliable identification testimo ny.

Monson v. Brathw

aiter , 432 U.S. 98, 99, 114 (1977). The admissibilit y o f ident ificat io n evidence is determ

ined by (1) whether the ide n tificat io n procedure was “unduly suggestive” and (2) whether the procedure posed “a very substanti a l likeliho od of irreparable misidentification.” R ogers , 126 F.3d at 658. Only if both questions are answered affirmat ively do we require suppression. I d. We agree wit h the district court th at even if the show-up and the single-photo dis p lay were unduly suggestive, the procedures did not pose a “very substanti al likeliho od of irreparable misident ification.”

Courts consider five factors to d eterm ine the likeliho od of irreparable misident ificat io n: (1) the wit ness’s opportunity to v iew the suspect at the t ime of the offense, (2) the witness’s degree of attention, (3) the accuracy of t he wit ness’s prior description of the ac tor, (4) the wit ness’s level o f certainty at the confrontation, and (5) the length of time between the crime and the confrontation. Neal v. Biggers , 409 U.S. 188, 199 (1972). In this case, all five factors favor the identificat io n’s reliabilit y.
Alt hough the accident happened at night , there was no testimo ny th at it was too dark to
see and the light was sufficient fo r b oth wit

nesses to provide descriptions of the suspect. Both wit nesses spoke wit h the suspect directly, immediat ely aft er wit nessing a significant crash. Their pri or descri ptions proved accurate. Neither witness suggested that they were uncertain of the identification. One wit ness identified Stoddard the night of the accident, aft er seeing him twice; the other identified him only a week lat er, again having seen him twice. The distric t court did not abuse its discretion by admit ting the identifications. III. W here, as here, the defendant moved for judgment of acquittal at the clo se of the evidence, we decide whether the evidence is suff icient by “viewing the evidence and the inferences th at may be drawn from it in the light
mo st favorable to the verdict” and determ ining whether “a rational jury could have found the essential elements of the of fenses beyond a reasonable doubt.” United States v. PrunedaGonzalez , 953 F.2d 190, 193 (5th Cir. 1992). The jury has the sole responsibility fo r weighing the evidence and making credibility determinat io ns. U

nited States v. Jaramillo , 42 F.3d 920, 923 (5th Cir.1995). “It is not necessary th at the evidence exclude ever y rational hypothesis of inno cence or be wholly inco nsist ent wit h every conclusion except guilt , provided a reasonable trier of fact could find the evidence establishes guilt beyo nd a reasonable doubt.” Pruneda-Gonzalez , 953 F.2d at 193. “However, we must reverse a conviction if the evidence cons trued in favor of the verdict gives equal or nearly equal circumstantial support to a theory of guilt and a theory of innocence of the crime charged.” 2
Stoddard argues that the evidence is insufficient to demonstrate th at he possessed the met hamphetamine. The prosecution relied on
a constructive possession theory , arguing th at Stoddard maint ained dom inio n or control over the vehicle in which the contraband was concealed. S ee United States v. Wright , 24 F.3d 732, 734 (5th Cir. 1994). The government brought fo rth evidence th at Stoddard had borrowed the car and was it s sole occupant when it hit a tree carrying large amo unts of met hamphetamine. He fled the scene and later dis2 Jaramillo , 42 F.3d at 923 ; s ee also United States v. Gonzales , 436 F.3d 560, 571 (5th Cir. 2006) , c ert. denied , 126 S. Ct. 2045 (2006), and cert. denied , 126 S. Ct. 2362 (2006), a nd cert. denied , 126 S. Ct. 2363 (2006).claimed any knowledge about the truck, despite the presence of it ems in it bearing his
name.

We have rejected a constructive possession theory based on co nt rol of a vehicle where a passenger in the vehicle may have actually possessed the contraband. I

d. at 735. Here, there
was no evidence of jo int occupation on the night in question, and Stoddard’s flight and lat er disavowal of the vehicle are consistent wit h knowledge of the car’s illegal contents. The evidence was sufficient fo r a reasonable fact-finder to find beyond a reasonable doubt th at Stoddard possessed the drugs.

Stoddard contends th at the evidence i s insufficient to demonstrate th at he possessed the drugs wit h int ent to distribute. He was arrested in possession of a large quantity of drugs, valued at nearly twenty th ousand dollars, and large amo unts of currency packaged in small
amo unts. In close proximity was drug distribution paraphernalia, including a scale and a grinder. The government produced sufficient evidence to demonstrate int ent to distribute. See, e.g., United States v. Jackson , 55 F.3d 1219, 1226 (6th Cir. 1995).

Stoddard argues th at the evidence is insufficient to demonstrate th at he possessed a fir earm in furtherance of a drug traf ficking crime. “The mere presence of a fir earm at the scene of drug activit y does not alo ne amo unt to possession in furtherance of th at activit y. ” U nited States v. Charles , 469 F.3d 402, 406 (5th Cir. 2006), c ert. denied , 127 S. Ct. 1505 (2007)

. In assessing whether a firearm is possessed in furtherance of drug activit y, relevant factors include, inter alia , the ty pe of drug activit y, the accessibilit y of the fir earm, the type of weapon, whether the weapon is lo aded, the proximit y of the weapon to drugs or drug prof it s, and the time and circumst ances in which the gun is found. Id. The evidence demonstrates th at Stoddard engaged in sales from his vehicle (he had no lo cal address), and a loaded semi-automaticpistol was found late at night under the floorboard of his car in clo se proximity to drugs, cash, and distribution paraphernalia. A rational fact-finder could find beyond a reasonable doubt th at Stoddard possessed the gun in furtherance of a drug trafficking crime. The judgment is AFFIRMED.