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

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m 06-41179

Summary Calendar

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

GREG STODDARD,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Eastern District of Texas

m 1:05-CR-151

______________________________

Before SMITH, WIENER, and OWEN, 

Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Greg Stoddard was convicted by a jury of

possession of a firearm in furtherance of a

drug trafficking crime and possession of a controlled substance with intent to distribute. He

* Pursuant to 5THCIR.R. 47.5, the court has determined that this opinion should not be published

(continued...)

*

(...continued)

and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.
appeals his conviction, arguing that there was

insufficient evidence to sustain the verdict and

that the identification procedures used by the

police were unduly suggestive.1 Finding no

error, we affirm.

I.

About 9:30 in the evening, a truck left the

side of the road and careened into a tree. Two

witnesses approached the truck and observed

its sole occupant emerge in a daze. Both

witnesses inquired as to the driver’s health,

and one dialed 911. By the time the police

arrived, the driver had wandered away.

Inside the truck, police found a loaded .38

caliber pistol in the glove box, a TEC-9 semiautomatic pistol in the floorboard, a large

number of plastic bags, a scale, a grinding machine, and, in the center console, a large

amount of crystal methamphetamine, and

$1,580 in currency divided up into one-hundred-dollar increments. Police also found a

shirt and a pill bottle with Stoddard’s name on

them and two notebooks bearing his name and

address. 

Both witnesses gave an identification ofthe

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 shortly thereafter at a nearby convenience store wearing a green tee shirt and jeans.

The sum of $4,856 was found on his person,

packaged in similar hundred-dollar increments.

He was brought to the scene of the accident

but disclaimed knowledge of the truck or the

items inscribed with his name.

One ofthe witnesses encountered Stoddard

at the convenience store before the arrest and

returned to identify him at the scene. Another

witness encountered Stoddard and an officer

later that night at the hospital and positively

identified Stoddard a week later from a singlephoto display.

Stoddard pleaded not guilty to a threecount indictment and was convicted of one

count of firearm possession and one count of

possession ofmethamphetamine with intent to

distribute, a third count having been dismissed

per government motion. Stoddard appeals,

claiming that the evidence was insufficient as

a matter of law on both counts and that the

witness identifications should have been suppressed because the police procedures were

unduly suggestive.

II.

We first consider Stoddard’s evidentiary

objection, because the witness 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 that the witnesses could identify

Stoddard in their testimony. “When reviewing

a ruling from a pretrial suppression hearing,

this Court must give credence to the credibility

choices and findings of fact of the district

court unless clearly erroneous.” United States

v. Shaw, 894 F.2d 689, 691 (5th Cir. 1990)

(citations omitted). Admission of evidence is

generally reviewed for abuse of discretion.

United States v. Rogers, 126 F.3d 655, 657

(5th Cir. 1997). 

The Due Process Clause forbidsthe 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-methamphetamine hydrochloride of

at least 80% purity,” see U.S.S.G. § 2D1.1; the

jury, on the special verdict form, found that

Stoddard possessed “d-methamphetamine hcl” of at

least 80% purity. “Hcl” is a common chemical

abbreviation for hydrochloride, and the jury heard

testimony about the abbreviation. Stoddard’s argument is without merit.
sion of unreliable identification testimony.

Monson v. Brathwaiter, 432 U.S. 98, 99, 114

(1977). The admissibility of identification evidence is determined by (1) whether the

identification procedure was “unduly suggestive” and (2) whether the procedure posed “a

very substantial likelihood of irreparable misidentification.” Rogers, 126 F.3d at 658. Only if both questions are answered affirmatively

do we require suppression. Id. We agree with

the district court that even if the show-up and

the single-photo display were unduly suggestive, the procedures did not pose a “very substantial likelihood of irreparable misidentification.”

Courts consider five factors to determine

the likelihood of irreparable misidentification:

(1) the witness’s opportunity to view the suspect at the time of the offense, (2) the witness’s degree of attention, (3) the accuracy of

the witness’s prior description of the actor,

(4) the witness’s level of 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 identification’s reliability.

Although the accident happened at night,

there was no testimony that it was too dark to

see and the light was sufficient for both witnesses to provide descriptions of the suspect.

Both witnesses spoke with the suspect directly, immediately after witnessing a significant

crash. Their prior descriptions proved accurate. Neither witness suggested that they were

uncertain of the identification. One witness

identified Stoddard the night of the accident,

after seeing him twice; the other identified him

only a week later, again having seen himtwice.

The district court did not abuse its discretion

by admitting the identifications.

III.

Where, as here, the defendant moved for

judgment of acquittal at the close of the evidence, we decide whether the evidence is sufficient by “viewing the evidence and the inferences that may be drawn from it in the light

most favorable to the verdict” and determining

whether “a rational jury could have found the

essential elements of the offenses beyond a

reasonable doubt.” United States v. PrunedaGonzalez, 953 F.2d 190, 193 (5th Cir. 1992).

The jury has the sole responsibility for weighing the evidence and making credibility determinations. United States v. Jaramillo, 42 F.3d

920, 923 (5th Cir.1995). “It is not necessary

that the evidence exclude every rational hypothesis ofinnocence or bewhollyinconsistent

with every conclusion except guilt, provided a

reasonable trier of fact could find the evidence

establishes guilt beyond a reasonable doubt.”

Pruneda-Gonzalez, 953 F.2d at 193.

“However, we must reverse a conviction if the

evidence construed in favor of the verdict

gives equal or nearly equal circumstantialsupport to a theory of guilt and a theory of innocence of the crime charged.”2

Stoddard argues that the evidence is insufficient to demonstrate that he possessed the

methamphetamine. The prosecution relied on

a constructive possession theory, arguing that

Stoddard maintained dominion or control over

the vehicle in which the contraband was concealed. See United States v. Wright, 24 F.3d

732, 734 (5th Cir. 1994). The government

brought forth evidence that Stoddard had borrowed the car and was its sole occupant when

it hit a tree carrying large amounts of methamphetamine. He fled the scene and later dis2

Jaramillo, 42 F.3d at 923; see also United

States v. Gonzales, 436 F.3d 560, 571 (5th Cir.

2006), cert. denied, 126 S. Ct. 2045 (2006), and

cert. denied, 126 S. Ct. 2362 (2006), and cert.

denied, 126 S. Ct. 2363 (2006).
claimed any knowledge about the truck, despite the presence of items in it bearing his

name. 

We have rejected a constructive possession

theory based on control of a vehicle where a

passengerin the vehiclemayhave actuallypossessed the contraband. Id. at 735. Here, there

was no evidence of joint occupation on the

night in question, and Stoddard’s flight and

later disavowal of the vehicle are consistent

with knowledge of the car’s illegal contents.

The evidence was sufficient for a reasonable

fact-finder to find beyond a reasonable doubt

that Stoddard possessed the drugs.

Stoddard contends that the evidence is insufficient to demonstrate that he possessed the

drugs with intent to distribute. He was arrested in possession of a large quantity of drugs,

valued at nearly twenty thousand dollars, and

large amounts of currency packaged in small

amounts. In close proximity was drug distribution paraphernalia, including a scale and a

grinder. The government produced sufficient

evidence to demonstrate intent to distribute.

See, e.g., United States v. Jackson, 55 F.3d

1219, 1226 (6th Cir. 1995).

Stoddard argues that the evidence is insufficient to demonstrate that he possessed a firearm in furtherance of a drug trafficking crime.

“The mere presence of a firearm at the scene

of drug activity does not alone amount to possession in furtherance ofthat activity.” United

States v. Charles, 469 F.3d 402, 406 (5th Cir.

2006), cert. denied, 127 S. Ct. 1505 (2007).

In assessing whether a firearm is possessed in

furtherance of drug activity, relevant factors

include, inter alia, the type of drug activity,

the accessibility of the firearm, the type of

weapon, whether the weapon is loaded, the

proximity of the weapon to drugs or drug

profits, and the time and circumstances in

which the gun is found. Id.

The evidence demonstrates that Stoddard

engaged in sales from his vehicle (he had no

local address), and a loaded semi-automatic

pistol was found late at night under the floorboard of his car in close proximity to drugs,

cash, and distribution paraphernalia. A rational fact-finder could find beyond a reasonable

doubt that Stoddard possessed the gun in furtherance of a drug trafficking crime.

The judgment is AFFIRMED.