* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

March 2, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-20896

Summary Calendar

 

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

JOE KING

Defendant - Appellant

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:03-CR-285-10

--------------------

Before KING, WIENER and DeMOSS, Circuit Judges.

PER CURIAM:*

Joe King appeals his conviction for possession with intent

to distribute phencyclidine (PCP), and aiding and abetting. King

argues that the evidence was insufficient to sustain the three

elements of his offense: knowledge, possession of a controlled

substance, and intent to distribute. See 21 U.S.C § 841(a)(1).

King filed a timely motion of acquittal at the close of the

Government’s case and at the close of all of the evidence. See

FED. R. CRIM. P. 29. Accordingly, his challenge to the
No. 04-20896

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sufficiency of the evidence is reviewed for “‘whether a

reasonable trier of fact could have found that the evidence

established guilt beyond a reasonable doubt.’” United States v.

Butler, 429 F.3d 140, 151 (5th Cir. 2005) (citation omitted). 

Knowledge

King argues that there was insufficient evidence, either

direct or circumstantial, to establish that he knew he possessed

any controlled substance. He challenges the reliability of the

testimony from Raymond Hines, a co-defendant.

The record contains direct evidence from Hines that he

delivered eight ounces of PCP to King in Hines’s car. Hines

testified that King had requested through another co-defendant

that the eight ounces be delivered to him. Hines further

testified that King paid him money for the transaction. The

testimony from Hines was direct evidence from eyewitnesses to the

incident, not circumstantial evidence. The jury was entitled to

believe Hines to be a credible witness. See Butler, 429 F.3d at

141. King cannot show that Hines was an incredible witness in

light of the extensive surveillance that was conducted on Hines,

his operation, and on King himself. See United States v. Bermea,

30 F.3d 1539, 1552 (5th Cir. 1994).

Intent to deliver

King argues that, even assuming arguendo that he picked

something up from Hines, there is no evidence that he intended to

deliver it to another person. Hines testified that he received a
No. 04-20896

-3-

call from a co-defendant stating that King “and his cousins” were

in town and were requesting the eight ounces of PCP to buy at the

cost of $1300. The jury was entitled to believe the testimony of

Hines that the sale to King involved delivery to King’s cousins. 

See Booker, 334 F.3d at 410. Further, the large sum of cash is

also consistent with delivery. See United States v. Skipper, 74

F.3d 608, 611 (5th Cir. 1996).

Proof of possession

King argues that there is insufficient evidence to establish

that he possessed any controlled substance. King argues that

Hines’s testimony that the substance he gave to King was PCP was

incredible testimony. 

This court has held that the identification of a controlled

substance may be established by circumstantial evidence as long

as the nature of the substance is established beyond a reasonable

doubt. See United States v. Benbrook, 40 F.3d 88, 93-94 (5th

Cir. 1994). Possession may be either actual or constructive. 

United States v. Mergerson, 4 F.3d 337, 348 (5th Cir. 1993). 

The testimony of Hines established that King was given eight

ounces of PCP by Hines in return for King paying Hines $1300. 

The jury was entitled to believe the testimony of Hines. See

Booker, 334 F.3d at 410. King’s argument that Hines’s testimony

was incredible is not supported by the record of surveillance,

the wiretaps, and the testimony from agents conducting the

investigation. See Bermea, 30 F.3d at 1552. Viewed in a light
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most favorable to the verdict, the evidence is sufficient to

sustain Hines’s conviction for possession with intent to deliver

PCP. See Butler, 429 F.3d at 151.

AFFIRMED.