* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-51099

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

T J SMITH, III

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 5:05-CR-688-ALL

Before JOLLY, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

T.J. Smith, III, appeals his jury conviction and resulting 240-month

sentence for possession with intent to distribute 50 grams or more of a mixture

or substance containing a detectable amount of cocaine base. Smith asserts that

there was insufficient evidence to establish that he possessed the cocaine base.

After considering the evidence in the light most favorable to the

Government, we conclude that it was rational for the jury to find that the

evidence was sufficient to establish beyond a reasonable doubt that Smith

United States Court of Appeals

Fifth Circuit

F I L E D

July 22, 2008

Charles R. Fulbruge III

Clerk
No. 07-51099

2

constructively possessed the cocaine base. See United States v. Mata, 491 F.3d

237, 242 (5th Cir. 2007); United States v. Lopez-Moreno, 420 F.3d 420, 437-438

(5th Cir. 2005). Trial testimony revealed that the cocaine base was found in a

backpack in the bedroom closet of a hotel suite registered to Warren Farley.

Also found in the bedroom were a closet full of brand new tennis shoes and

clothes, some of which were in dry cleaner bags with the name T. J. Smith on

one tag and the name T. Smith on another tag, and numerous other personal

items such as a red mesh bag with identification tags indicating that the owner

was T.J. Smith, III; photographs depicting Smith wearing a jersey identical to

one hanging in the closet; a traffic citation issued to T.J. Smith, III; a personal

letter addressed as follows: “T.J., keep this with you, and read it more than

twice;” a copy of a birth certificate for T.J. Smith, III; a social security card

issued to T.J. Smith, III; and a receipt for a wireless phone and service in the

name T.J. Smith issued two days prior to the execution of the search warrant.

Officers did not find any articles linking the bedroom to anyone other than

Smith. 

A search of the kitchenette revealed, among other things, a coffee cup

containing traces of cocaine residue and Smith’s fingerprints. In addition,

members of the hotel housekeeping staff testified that they had seen Smith and

others in the hotel suite on numerous occasions and that Smith had once opened

the door and permitted them to enter. On the day of the search, Smith was seen

approaching the suite and quickly retreating after observing the police activity.

Smith was arrested a month later after a traffic stop and resulting search of his

vehicle revealed cocaine and other drug paraphernalia.

Smith asserts that because the suite was registered to Farley and because

others had been seen inside the suite, it is impossible to attribute the drugs in

the backpack solely to him. However, there is no requirement that constructive

possession be exclusive. See United States v. Patterson, 431 F.3d 832, 837 (5th

Cir. 2005). The possibility that other people might have been in the suite at
No. 07-51099

3

some point does not negate the evidence demonstrating an “adequate nexus”

between Smith and the cocaine found in the backpack. See United States v.

Benbrook, 40 F.3d 88,94 (5th Cir. 1994). The presence of a plethora of

important personal documents, clothing, shoes, and photographs belonging to

Smith support the conclusion that Smith occupied the bedroom and exercised

dominion and control over the premises. Based on the evidence, a rational jury

could have found it plausible that Smith had knowledge of, and access to, the

cocaine found in the backpack in the bedroom. See United States v. Hinojosa,

349 F.3d 200, 204 (5th Cir. 2003) 

Accordingly, the judgment of the district court is AFFIRMED.