United States Court of Appeals

FOR THE EIGHTH CIRCUIT

________________

No. 06-2397

________________

United States of America,

Appellee,

v.

Joseph Dodd, also known as

Shakespeare,

Appellant.

*

*

*

*

*

*

*

*

*

*

*

Appeal from the United States

District Court for the 

Southern District of Iowa.

________________

Submitted: November 15, 2006

 Filed: January 12, 2007

________________

Before GRUENDER, JOHN R. GIBSON and BOWMAN, Circuit Judges. 

________________

GRUENDER, Circuit Judge.

Joseph Dodd (“Dodd”) appeals his conviction of conspiracy to distribute or

possess with intent to distribute cocaine and cocaine base. Dodd contends that the
1

The Honorable Robert W. Pratt, Chief United States District Judge for the

Southern District of Iowa.

-2-

district court1

 erred in refusing to instruct the jury on the lesser included offense of

conspiracy to possess cocaine and cocaine base. We affirm. 

I. BACKGROUND

Following years of a federal investigation of a drug conspiracy ring led by

Dodd’s nephew, Frederick Dodd (“Fred Dodd”), a grand jury returned an indictment

against Dodd, Fred Dodd, Anthony Timothy Dodd, Aikins Frimpong and Elijah

Hayes, charging them with various cocaine trafficking offenses. With respect to

Dodd, the indictment charged him with one count of conspiracy to distribute or

possess with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C.

§§ 841(a)(1), 846. After a joint trial of the five co-defendants, the jury found Dodd

guilty. Dodd moved for a new trial claiming that the verdict was contrary to the

evidence. The district court granted the motion, and this court affirmed in United

States v. Dodd, 391 F.3d 930 (8th Cir. 2004).

A second trial of Dodd alone commenced, again on the conspiracy to distribute

or possess with intent to distribute charge. Dodd’s theory of defense was that he was

an addict-user of cocaine and not a member of a conspiracy to distribute or possess

with intent to distribute. In support of its theory that Dodd was a member of the

conspiracy to distribute or possess with intent to distribute, the Government presented

evidence spanning the period from the beginning of the conspiracy to Dodd’s ultimate

arrest, of which we recite only a sampling. Laura Bentley, Michelle Lynn Bloomer,

Debra Cunningham, Biundo Davis, Nello Goodman, Mary Grady, Angela Tjossem,

DeAndre Williams and Melvin Yancy—all either users, co-conspirators or

both—testified that Dodd was involved in the distribution of cocaine and cocaine base

with Fred Dodd. Testimony revealed that undercover Officer Chuck Pettrone bought
-3-

an “eightball” (one eighth of an ounce) of 91 percent pure cocaine from Dodd. During

this transaction, Dodd was accompanied by Tebbie Bergen, another co-conspirator.

Officer Pettrone testified that the high purity of the cocaine was consistent with

redistribution or resale. 

Goodman also testified that Dodd served as an armed security guard for Fred

Dodd. Officer Gina Clark-Hayes confirmed Dodd’s role and testified that Dodd

served as a look-out and conducted counter-surveillance at Fred Dodd’s apartment

while she made a controlled buy. Yancy testified about an altercation between Fred

Dodd and a rival drug dealer concerning a territory dispute at which Dodd was

present, acting as a security guard and armed with a pistol. When the altercation got

physical between Fred Dodd and his rival, Dodd shot the rival. 

Eventually Dodd was arrested at his residence for his suspected involvement

in the conspiracy. Officer Larry Hufford, the arresting officer, testified that during the

course of the arrest he saw three plastic baggies in plain view that later tested positive

for cocaine residue. The baggies led to the discovery of a postal scale and packaging

material in Dodd’s bedroom. Officer Hufford testified that the scale was consistent

with those commonly used to weigh drugs and that the packaging material was of the

type used to package crack cocaine. He also discovered baby food jars containing

cocaine residue in Dodd’s room. Hufford testified that baby food jars typically are

used to convert powder cocaine to crack cocaine. 

At the close of evidence, Dodd requested a jury instruction on the lesser

included offense of conspiracy to possess cocaine and cocaine base. After hearing

arguments, the district court concluded that there was no evidence of a conspiracy

simply to possess cocaine and cocaine base and denied the requested instruction. The

jury was instructed on various aspects of a conspiracy, including the distinction

between single and multiple conspiracies. Specifically, the jury was charged that

“[t]he government must convince you beyond a reasonable doubt that Joseph Dodd
-4-

was a member of the conspiracy charged in the Indictment . . . . Proof that the

defendant was a member of some other conspiracy is not enough.” (Inst. No. 13.)

The jury found Dodd guilty of conspiracy to distribute or possess with intent to

distribute cocaine and cocaine base. Dodd was sentenced to 180 months’

imprisonment. This time on appeal, Dodd does not challenge the sufficiency of the

Government’s evidence, but he challenges the district court’s refusal to instruct the

jury on the lesser included offense and asks this Court for a third trial. 

II. DISCUSSION

We review the district court’s formulation of jury instructions for an abuse of

discretion. United States v. Ziesman, 409 F.3d 941, 949 (8th Cir. 2005), cert. denied,

--- US ---, 126 S. Ct. 579 (2006). “[T]he defendant is entitled to an instruction on a

lesser included offense if the evidence would permit a jury rationally to find him

guilty of the lesser offense and acquit him of the greater.” Id. (alteration in Ziesman).

In the Eighth Circuit, a defendant is entitled to a lesser-included-offense instruction

when: (1) a proper request is made; (2) the elements of the lesser offense are identical

to part of the elements of the greater offense; (3) there is some evidence which would

justify conviction of a lesser offense; (4) the proof on the element or elements

differentiating the two crimes is sufficiently in dispute so that the jury may

consistently find the defendant innocent of the greater and guilty of the lesser included

offense; and (5) there is mutuality, i.e., a charge may be demanded by either the

prosecution or defense. Id. The Government concedes that Dodd satisfies prongs (1)

and (5). We will assume, without deciding, that Dodd satisfies prongs (2) and (3), and

our analysis, therefore, will focus on prong (4). 

To establish a conspiracy the Government must prove that two or more persons

reached an agreement to achieve an illegal purpose, the defendant voluntarily and

intentionally joined the agreement, and at the time that the defendant joined the

agreement he knew its essential purpose. United States v. Sherman, 440 F.3d 982, 990
-5-

(8th Cir. 2006). The difference between a conspiracy to possess and a conspiracy to

distribute or possess with intent to distribute is obvious: the essential purpose of the

former is simply the possession of the cocaine or cocaine base and of the latter is an

intent to distribute it. Under prong (4) of the aforementioned test, we conclude that

the proof of this differentiating element was not sufficiently in dispute such that a

rational jury could consistently find Dodd innocent of the greater offense and guilty

of the lesser offense. See Ziesman, 409 F.3d at 949.

Contrary to Dodd’s blanket assertion that the Government made “no

connection” between him and the Fred Dodd conspiracy, we believe that the evidence

clearly established Dodd’s participation in a conspiracy to distribute or possess with

intent to distribute. For example, the Government presented testimony that Dodd sold

an eightball of 91 percent pure cocaine to undercover Officer Pettrone, who later

testified that the purity was consistent with redistribution. Additionally, Laura

Bentley, Michelle Lynn Bloomer, Debra Cunningham, Biundo Davis, Nello

Goodman, Mary Grady, Angela Tjossem, DeAndre Williams and Melvin Yancy all

testified that Dodd sold cocaine or was involved in the distribution of cocaine with

Fred Dodd. The Government also presented evidence that Dodd served as a security

guard and as an enforcer for Fred Dodd, and on one occasion shot one of Fred Dodd’s

rival drug dealers during an altercation. Finally, the jury heard evidence that a search

of Dodd’s residence revealed baby food jars with cocaine residue inside, a scale and

packaging material, all of which together are consistent with the distribution of

cocaine. 

Dodd argues that the jury could rationally find him guilty of the lesser charge

of conspiracy to possess if it chose to believe those portions of the testimony from

Bentley, Bloomer, Cunnighman, Davis, Tjossem and Yancy that Dodd was a cocaine

user and discredit those portions of their testimonies linking him to the Fred Dodd

conspiracy. Dodd ignores the fact, however, that in order to convict him only of the

lesser offense, the jury also would have to discredit the entire testimony from those
-6-

witnesses who connected Dodd to the Fred Dodd conspiracy but did not testify that

Dodd was a drug user, such as Goodman, Grady and Williams; Officer Pettrone’s

testimony; and the physical evidence obtained from the search of Dodd’s apartment.

Though the jury, which has sole responsibility for assessing the credibility of

witnesses, is free “to accept one or more witnesses’s testimony only in part and

thereby to create its own version of the facts,” the district court need not give the

lesser-included-offense instruction when “there is no basis upon which the jury could

rationally find the defendant innocent of the more serious count, but guilty of the

lesser count.” United States v. Felix, 996 F.2d 203, 207 (8th Cir. 1993). We believe

it would be irrational for a jury to disregard the overwhelming evidence establishing

Dodd’s participation in a conspiracy to distribute the cocaine and focus solely on the

evidence establishing Dodd’s possession and drug use. Consequently, we find no

abuse of discretion in the district court’s refusal to give Dodd’s lesser-includedoffense instruction. 

III. CONCLUSION

For the foregoing reasons, we affirm the judgment of the district court.

______________________________