UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 94-50393

__________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CORTNEY ANTHONY LUCIEN,

Defendant-Appellant.

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Appeal from the United States District Court for the

Western District of Texas

______________________________________________

(August 8, 1995)

Before WISDOM, GARWOOD and DAVIS, Circuit Judges.

GARWOOD, Circuit Judge:

Plaintiff-appellant Cortney Anthony Lucien (Lucien) appeals

his convictions, following a jury trial, of one count of possession

with intent to distribute cocaine base in violation of 21 U.S.C. §

841(a)(1) and one count of poss ession of a firearm during and in

relation to a drug trafficking offense in violation of 18 U.S.C. §

924(c). We reverse and remand.

Facts and Proceedings Below

On September 5, 1989, local police executed a search warrant

at 6302-D Manor Road in Austin, Texas. Upon entering the1 A police forensic chemist testified that the net weight of the

cocaine seized was 16.48 grams.

2 Both indictments as well as the caption on appeal list

Lucien's name as "Cortney Anthony Lucien." In his brief on appeal,

Lucien concedes that he gave an incorrect name when he was arrested

by the Austin police.

2 residence, the officers observed a black male, later identified as

Lucien, running from the bathroom. Officer Valera (Valera) heard

running water in the bathroom and noticed that Lucien's hands were

wet. Valera found a plastic bag containing several aluminum foil

packets floating in the t oilet and $819 in cash in the bathroom

sink. An additional $408 was found in a pair of pants in one of

the bedrooms. The police arrested Lucien and Taika Campbell

(Campbell) at the scene. No one else was present. The officers

found the keys to the Manor Road residence in Lucien's pockets as

well as an identification card bearing his picture but the name

Antwon Watson. The officers found a rental application for the

Manor Road apartment in the name of Antwon Watson in the living

room. In the course of executing the search warrant, the officers

also seized three weapons and approximately sixteen grams of crack

cocaine. 1 Although Lucien's real name is apparently Corey Demetric

Lucien, he gave his name as Cortney Anthony Lucien at the time of

his arrest. 2 Lucien also told the Austin police that his address

was 560 Rice in San Antonio, Texas, but the government verified

that no such address existed.

Law enforcement officials filed second-degree drug felony

charges against Lucien and Campbell in Texas state court. On

September 9, 1989, Lucien posted bail and returned to his home in3

Los Angeles, California. In October 1989, all state charges

against Lucien were dropped, and state and federal authorities

agreed that the federal government would prosecute Lucien. On

October 10, 1989, an agent with the Bureau of Alcohol, Tobacco, and

Firearms (ATF) placed a h old on two of the three weapons seized

during the September 9, 1989, search. On January 29, 1992, the

hold was accidentally r emoved, and the two weapons were

subsequently destroyed. The third firearm had been returned to its

true owner and thus was not destroyed.

On May 9, 1991, nineteen months after the state charges were

dropped, Lucien and Campbell were indicted by a federal grand jury

on three drug-related counts, and federal warrants fo r their

arrests were issued. Taika Campbell was arrested on August 9,

1991, in Los Angeles, California, and federal authorities proceeded

with the case against him until the charges were dismissed on

January 9, 1992. Lucien remained at large until November 23, 1993,

when he was arrested by the California police during a routine

traffic stop after an NCIC check indicated the outstanding federal

arrest warrant. Lucien was taken into custody and subsequently

transferred to the Western District of Texas.

On January 18, 1994, a federal gr and jury returned a

superseding three-count indictment charging Lucien and Campbell

with conspiracy to possess with intent to distribute cocaine base

in violation of 21 U.S.C. § 841(a)(1) & 846 (Count One), possession

with intent to distribute cocaine base in violation of 21 U.S.C. §

841(a)(1) (Count Two), and possession of firea rms during and in3 Although Campbell was charged in this superseding indictment,

he was not tried with Lucien.

4 The district court noted that Lucien's sister, in an

affidavit, attested that Lucien lived with her at 1016 Gage Street

from September 1989 to September 1990. This affidavit contradicts

Lucien's testimony that he lived with his sister until January

1990.

4 relation to the commission of a drug trafficking offense in

violation of 18 U.S.C. § 924© (Count Three). 3 Lucien filed a

motion to dism iss for lack of a speedy trial and a supplemental

brief alleging that his due process rights were violated by the

period of preindictment delay. On February 10, 1994, the district

court held an evidentiary hearing on this motion.

At this hearing , Lucien maintained that, during the period

between the October 1989 dismissal of the state charges and his

Novembe r 1993 arrest, he was living openly in Los Angeles. He

testified that, after his release on bail and until January 1990,

he lived openly with his sister at 1016 Gage Street, Los Angeles,

California, an address listed on his bond application. 4 According

to Lucien, he moved to his mother's house at 1717 West 45th Street

in Los Angeles in January 1990 and lived openly at her house until

his arrest in November 1993. As evidence, Lucien provided

probation records reflecting that he regularly completed his

required community service hours, copies of an income tax return,

ph one bills, and a California identification card issued by the

Department of Motor Vehicles (DMV). All these documents listed

Lucien's address as 1717 West 45th Street.

Charles Meyer, an ATF agent, testified about the government's5

efforts to locate Lucie n after the federal arrest warrant was

issued. Meyer testified that he contacted the Los Angeles police

department, the sheriff's department, and the gang unit; called the

California phone numbers listed in ph one records seized from the

Manor Road residence; che cked several addresses associated with

Lucien; and sent flyers to Los Angeles and San Antonio. In

searching the California DMV records, Meyer used the name Cortney

Anthony Lucien. Because Lucien's California identification card

was under the name Corey Demetric Lucien, the result stated "No

record for criteria g iven." Meyer conceded that the government

never sent an agent to the 1016 Gage Street add ress listed on

Lucien's bond application. Eventually, the government obtained the

1717 West 45th Street address from a Los Angeles gang unit, and in

December 1991, Meyer requested a Los Angeles-based ATF agent,

Annette Harden (Harden), to go to the 1717 West 45th Street address

and attempt to apprehend Lucien. Harden testified that she went to

1717 West 45th Street and spoke with a middle-aged woman who

identified herself as a relative of Lucien's. After this woman

told Harden tha t Lucien did not live at 1717 West 45th Street,

Harden informed her that there was an outstanding federal arrest

warrant for Lucien.

On March 31, 1994, the district court denied Lucien's motion

to dismiss the indictment for pre- and post-indictment delay.

Lucien's case proceeded to trial. At the close of the evidence,

Lucien requested that the district court give the jury a lesserincluded offense instruction on simple possession. The district5 In his brief on appeal, Lucien mistakenly states that he was

indicted on March 9, 1991, and therefore calculates the time period

between the dismissal of the state charges against him in October

1989 and his indictment on federal charges to be seventeen months.

The record, however, reflects that Lucien was indicted on May 9,

1991. Thus, the period of preindictment delay is actually nineteen

months.

6 court denied Lucien's request. Thereafter, the jury found Lucien

guilty of Counts Two and Three but acquitted him of the conspiracy

count. On May 27, 1994, the district court sentenced Lucien to 168

months of imprisonment, five years of supervised release, and

ordered him to pay a $100 in special assessments. Lucien filed a

timely notice of appeal.

Discussion

I. Preindictment Delay

Lucien argues that the delay between the dismissal of the

state charges against him and his indictment on federal charges

violated his Sixth Amendment right to a speedy trial. 5

Preindictment delay, however, does not raise a Sixth Amendm ent

issue; rather, it is examined under the due process clause of the

Fifth Amendme nt. United States v. Byrd , 31 F.3d 1329, 1339 (5th

Cir. 1994), cert. denied , 115 S.Ct. 1432 (1995). Although Lucien

raised a due process argument based on preindictment delay in the

district court, we hold that he has abandoned his preindictment

delay argument on appeal by failing to adequately brief the issue.

United States v. Heacock

, 31 F.3d 249, 258 (5th Cir. 1994).

Lucien's arguments on appeal focus so lely on the post-indictment

delay and the relevant Sixth Amendment analysis; he never raises6 Although his summary of the argument vaguely states that "preindictment and post-indictment delay both resulted in prejudice to

the Appellant," in the body of his brief, Lucien only mentions

preindictment delay once in a passing reference to both pre- and

post-indictment delay.

7 the due process argument or cites preindictment delay cases. 6

Even if Lucien had not abandoned his preindictment delay

argument, we would still reject it because he has not established

actual prejudice resulting from the delay. Citing Sixth Amendment

post-indictment delay cases, Lucien argues that the delay was

presumptively prejudicial; however, a defenda nt must show actual

prejudice to establish a claim of preindictment delay under the due

process clause. Lucien's argument is thus without merit. United

States v. Beszborn , 21 F.3d 62, 66 (5th Cir.) ("The concept of

presumed prejudice has no place in a due process analysis."), cert.

denied , 115 S.Ct. 330 (1994).

Lucien argues that the delay resulted in the destruction of

tangible evidence, but he never i dentifies what evidence was

destroyed. If Lucien is referring to the two firearms accidentally

destroyed, his argument fails. The government presented the third

weapon to the jury. Moreover, the loss of the two weapons inured

to Lucien's benefit and could hardly be said to constitute actual

pr ejudice. We thus reject Lucien's argument based on destroyed

evidence. United States v. Royals , 777 F.2d 1089, 1090 (5th Cir.

1985) (defendant must show that lost ev idence is material,

exculpatory, and otherwise unobtainable). Lucien also argues that

the government was responsible for the disappearance of Campbell,

the only eyewitness in the case. Lucien does not explain the7 The district court rejected Lucien's preindictment delay

argument on the ground that Lucien failed to establish that the

government delayed the indictment to gain a tactical advantage. We

recently addressed this issue in United States v. Crouch , 51 F.3d

480 (1995), petition for rehearing en banc granted

, 1995 WL 363762

(June 14, 1994). The panel opinion in C rouch held that a defendant

may prevail on a due process claim of preindictment delay even

without showing that the government intentionally dela y ed the

indictment to gain a tactical advantage. I d. at 483. Instead, the

panel in Crou ch held that, "after finding actual prejudice from

pre-indictment delay, the court must weigh the actual prejudice

suffered against the reasons for the delay." I d. at 485. Because

we find that Lucien has failed to establish actual prejudice, we

need not consider the conduct of the government in our

preindictment delay analysis.

8 Again, Lucien miscalculates the period of delay. In his brief

on appeal, Lucien states that the period of post-indictment delay

was fifteen months. The record, however, reflects that Lucien was

indicted on federal charges on May 9, 1991, and was arrested in

California on November 23, 1993. Accordingly, we calculate the

period of post-indictment delay to be approximately twenty-ei ght

months.

8 relevance of Campbell's testimony and thus cannot rely on it to

establish actual prejudice. United States v. Neal , 27 F.3d 1035,

1043 (5th Cir.) (defendant who failed to explain relevance of lost

witness's testimony could not show pr ejudice), c ert. denied

, 115

S.Ct. 530 (1994), and cert. denied

, 115 S.Ct. 1165 (1995). Because

Lucien completely fails to show that the alleged lost evidence or

missing witness in any way impaired his defense, he cannot

establish actual prejudice from the delay. 7

II. Post-indictment Delay

Lucien also argues that his Sixth Amendment right to a speedy

trial was violated by the delay betwe en his first federal

indictment and his subsequent arrest. 8 In analyzing a defendant's

Sixth Amendment speedy trial claim based on post-indictment delay,

we consider four factors: (1) the length of the delay, (2) the9

reason for the delay, (3) the defendant's assertion of his right,

and (4) preju dice to the defendant resulting from the delay.

United States v. Garcia

, 995 F.2d 556, 560 (5th Cir. 1993) (citing

Barker v. Wingo

, 92 S.Ct. 2182, 2192-93 (1972)). We review for

clear error a district court's findings in applying this balancing

test. R obinson v. Whitley

, 2 F.3d 562, 568 (5th Cir. 1993), cert.

denied , 114 S.Ct. 1197 (1994).

The length of the delay serves as the trigger for the Barker

analysis. D oggett v. United States

, 112 S.Ct. 2686, 2690-91

(1992). If the length of delay crosses a threshold level regarded

as presumptively prejudicial, the district court must make findings

regarding the remaining three factors and balance all four factors.

Robinson , 2 F.3d at 568. This Circuit generally requires a delay

of one year to trigger speedy trial analysis. I d. Because the

delay in the instant case exceeded one year, the district court

properly made findings concerning the remaining factor s. Under

Barker

, "different weights should be assigned to different reasons

[for the delay]," with delibe rate efforts "to hamper the defense

. . . weighted heavily against the government." B arker

, 92 S.Ct.

at 2192 (footnote omitted). "A more neutral reason such as

negligenc e or overcrowded courts should be weighted less heavily

but nevertheless should be considered since t he ultimate

responsibility for such circumstances must rest with the government

rather than with the defendant." Id.

Lucien argue s that the government was responsible for the

delay, that its conduct "was of such a neglige nt nature that it9 In support of this argument, Lucien relies on the dismissal of

the federal case against Campbell and the accidental removal of the

hold on the two weapons. It is unclear how the dismissal of the

charges against Campbell evinces a deliberate effort to delay

bringing Luci en to trial, especially given that Campbell was

rei ndicted in the January 18, 1994, superseding indictment along

with Lucien. As far as the destruction of the weapons is

concerned, the loss of this physical evidence actually benefits

Lucien. His contention that the destruction of this evidence

prevents him from analy zing whether the alleged weapons were

firearms as defined by 18 U.S.C. § 924(c) is unsupported by

anything even tending to suggest they were not firearms.

10 would appear deliberate," 9 and that his conduct did not contribute

to the delay in any way because he was unaware of the federal

indictment until his arrest in November 1993. Lucien relies

heavily on the fact that Meyer used only the name "Cortney Anthony

Lucien" in searching the California DMV records even though he knew

from the NCIC search that there were alternate spellings of

Lucien's name. If Meyer had tried these alternative names, Lucien

contends, he would have discovered Lucien's 1717 West 45th Street

address, where Lucien insists that he was living openly.

By December 1991, the government had found the 1717 West 45th

Street addres s and had sent ATF Agent Harden to investigate.

Although Lucien claimed that he was living openly at 1717 West 45th

Street from January 1990 until November 1993, a relative of

Lucien's told Harden that he did not live there. Moreover, Harden

told the woman that there was a federal warrant for Lucien's

arrest. This testimony, specifically credited by the district

court, undermines Lucien's argument that he did not learn of the

federal indictment until his arrest in November 1993. Even when

the government had the 1717 West 45th Street address, they could10 We note too that Lucien's use of several variations of his

true name, his alias Antwon Watson, and the false San Antonio

address that he gave at the time of his arrest all hindered the

government's search efforts.

11 not locate Lucien. Thus, the district court determined that, even

accepting Lucien's argument, he would still be responsible for "at

least two-thirds, if not all, of the post-indictment delay." We

agree. Lucien's characterization of the government's conduct as

deliberately dilatory is unfounded. 10

The district court determined that Lucien's preindictment

silence outweighed his speedy trial assertions, reasoning that he

knew the state charges against him were dropped to allow federal

authorities to prosecute him. In addition, in December 1991, Agent

Harden told a relativ e of Lucien's living in the house where he

claimed he was living openly that there was a federal warrant for

his arrest. Nevertheless, Lucien failed to assert his right to a

speedy trial until after he was arrested and counsel was appointed.

Thus, we agree with the district court that Lucien's preindictment

silence outweighed his speedy trial assertions.

The fourth Barker factor is the degree of prejudice suffered

by the defendant as a result of the delay. Here, because Lucien

was responsible for most of the delay, the district court properly

held that he had to demonstrate concrete proof of prejudice

stemming from the delay. D oggett

, 112 S.Ct. at 2693; see Robinson

,

2 F.3d at 570 (requiring "concrete proof" of prejudice when the

defendant is responsible "for the lion's share of delay"). As we

concluded in our preindictment delay analysis, Lucien has failed to12

establish that he has suffered any actual prejudice.

Takin g into account all the B arker factors, we hold that

Lucien has failed to show that his Sixth Amendment right to a

speedy trial was violated. The district court, therefore, did not

err in denying Lucien motion to dismiss for lack of a speedy trial.

III. Lesser-Included Offense

Lucien next argues that the district court erred in refusing

his request for an instruction on simple possession of a controlled

substance in violation of 21 U.S.C. § 844(a) as a lesser-included

offense under the ind ictment charging possession with intent to

distribute cocaine base under 21 U.S.C. § 841(a). Rule 31© of the

Federal Rules of Criminal Procedure provides in relevant part that

a "defendant may be found guilty of an offense necessarily included

in the offense charged." The district court may give a lesserincluded offense instruction if, but only if, (1) the elements of

the offense are a sub set of the elements of the charged offense,

and (2) the evidence at trial permits a jury to rationally find the

defendant guilty of the lesser offense yet acquit him of the

greater. U

nited States v. Browner

, 889 F.2d 549, 550-51 (5th Cir.

1989). We apply a two-tiered standard of review to the district

court's application of this test: the first prong is reviewed de

novo

, the second for abuse of discretion. U nited States v.

Harrison , 55 F.3d 163, 167 (5th Cir. 1995).

In United States v. Deisch

, 20 F.3d 139 (5 th Cir. 1994), we

considered what constitutes a lesser-included offense under an

indictment charging possession with intent to distribute coca ine11 Section 844(a) provides, in part,

"[1] It shall be unlawful for any person knowingly or

intentionally to possess a controlled substance unless

such substance was obtained directly, or pursuant to a

valid prescription or order . . . [2] Any person who

violates this subsection may be s entenced to a term of

imprisonment of not more than 1 year

. . . except that

if he commits such offense after a prior conviction

.

. . for any drug or narcotic offense . . . he shall

be sentenced to a term of imprisonment for not less than

15 days but not more than 2 years . . . except,

further, tha t if he commits such offense after two or

more prior convictions . . . for any drug or narcotic

offense

. . . he shall be sentenced to a term of

imprisonment for not less than 90 days but not more than

3 years . . . [3] Notwithstanding the preceding

sentence, a person convicted under this sub section for

the possession of a mixture or substance which contains

13 base in violation of section 841(a). In D eisch

, the defendant was

indicted on one count of conspiracy to distribute approximately 66

grams of cocaine base in violation of 21 U.S.C. §§ 841(a),

841(b)(1)(A), and 846, and one count of possession with intent to

distribute the same in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(A), and 18 U.S.C. § 2. At the close of the evidence, the

district court, over the defendant's objection, gave an instruction

on simple possession of "a cont rolled substance, cocaine base,

crack" in violation of 21 U.S.C. § 844(a) as a lesser-included

offense under the possession with intent to distribute count. I d.

at 142. The jury acquitted the defendant of both counts in the

indictment but found her guilty of the lesser-included offense.

Deisch appealed, arguing that the district court erred in

submitting any lesser-included offense instruction.

The Deisch court first analyzed the structure of section

844(a) 11 and concluded that "the third sentence of se ction 844(a)cocaine base shall be imprisoned not less than 5 years

and not more than 20 years, and fined a minimum of$1,000,

if the conviction is a first conv iction under this

subsection and the amoun t of the mixture or substance

exceeds 5 grams, if the con viction is after a prior

conviction for the possession of such a mixture or

substance under this subsection becomes final and the

amount of the mixture or substance exceeds 3 grams, or if

the conviction is after 2 or more prior convictions for

the possession of such a mixture or substance under this

subsection become final and the amount of the mixture or

substance exceeds 1 gram." 21 U.S.C. § 844(a) (bracket

numbering added).

14 creates a separate offense, an element of which is that the

substance possessed contains cocaine base." Id. at 148 (footnote

omitted). S ee United States v. Michael , 10 F.3d 838, 839 (D.C.

Cir. 1993) (holding that "the third s entence of § 844(a) . . .

creates an independent crime of possession of cocaine base").

Because possession of cocaine base is an element of the offense

proscribed in the third sentence of section 844(a) but is not an

element of any offense proscribed by section 841(a)(1), "under the

`statutory elements test' a violation of the third sentence of

section 844(a) can not be a lesser included offense under an

indictment charging possession with inte nt to distribute in

viola tion of section 841(a)(1), even if, as here, the indictment

alleges that the controlled substance is cocaine base." D eisch at

152 (citation omitted).

By contrast, the offense de nounced in the first sentence of

section 8 44(a) is simply knowing possession of a controlled

substance. The identity of the controlled substance as cocaine

base is not an element of the offense proscribed in the first12 In Deisch , although we held that the district court erred in

giv ing a lesser-included instruction on simple possession of

cocaine base in violation of the third sentence of section 844(a),

we did not set aside the jury's conviction because it "necessarily

found her guilty of a violation of the fi rst sentence of section

844(a) [simple possession of a controlled substance]." I d. at 152.

Because all cocaine base is a controlled substance, the jury that

found Deisch guilty of possession of cocaine base in violation of

the third sentence of section 844(a) necessarily (albeit perhaps

implicitly) found her guilty of possession of a contr olled

substance (cocaine base) in violation of the first sentence of

844(a). Thus, we affirmed Deisch's conviction under the first

sentence of section 844(a) but vacated her sentence, which was imposed under the third sentence of section 844(a) and remanded for

resentencing. Id.

13 The district court initially indicated that it would give the

requested instruction, but then apparently changed its mind based

on United States v. Michael

, 10 F.3d 838 (D.C. Cir. 1993). (Our

decision in Deisch was not handed down until after Lucien's

conviction). Based on its reading of Michael , the district court

concluded that simple possession of cocaine base is not a lesserinclu ded offense under the indictment charging possession with

intent to distribute cocaine base in violation of section 841(a)(1)

and therefore presumed that it could not give the requested

instruction. The district court, however, appears to have

overlooked the separate offense denounced in the first sentence of

section 844(a), possession of a controlled substance. Under D eisch

and Michael

, the district court could have given a lesser-included

offense instruction on simple possession of a controlled substance

contrary to the first sentence of section 844(a).

15 sentence of section 844(a); nor is it an element of the

distribution offense denounced in section 841(a)(1). Thus, "simple

p ossession of cocaine, contrary to the first sentence of section

844(a), may be a lesser included offense under a charge of

possessing cocaine with intent to distribute it contrary to section

841(a)(1)." Id. (citations omitted). 12

Applying this analysis to the facts of the instant case, we

hold that the district court erroneously concluded th at it could

not give a lesser-included instruction of simple possession. 13 The16

superseding indictment charged Lucien with possession "with intent

to distribute cocaine base, a Schedule II Narcotic Drug Controlled

Substance (here, cocaine base) in violation of [21 U.S.C. §

841(a)(1)]." Thus, under Deisch and the statutory elements test,

possession of a controlled substance (cocaine, here in the form of

cocaine base) in violation of the first sentence of section 844(a)

is a lesser-inclu ded offense under the superseding indictment in

this case.

Because Lucien satisfied the first prong of the two-prong test

for determining whether a defendant is entitled (on proper request)

to a lesser-included offense instruction, we turn now to the second

inquiry, namely, whether the evidence at trial was such that a jury

could rationally convict him of the lesser offense (possession of

a controlled substance) yet acquit him of the greater (possession

with intent to distribute cocaine base). We normally review for

abuse of discretion a district court's determination of this issue.

Harrison

, 55 F.3d at 167. Because the district court in this case

er roneously concluded that it could not give Lucien's requested

lesser-included offense instruction under the statutory elements

test, it did not make a specific finding as to the second prong of

the test. The record, however, reflects that the district court

initially indicated that it would give the lesser-included

instruction but subsequently determined that it could not based on

its misreading of Michael

. This implies that the district court

thought that the evidence at trial raised the possibility that a

rational jury could convict Lucien of simple possession but acquit17

him of possession with intent to distribute cocaine base.

In Harrison

, the defendan t was indicted for possession with

intent to distribute five grams or more of cocaine base in

violation of section 841(a)(1). The district court refused the

defendant's request for a lesser-included instruction on simple

possession of a controlled substance in violation of section

844(a). The jury subsequently convicted Harrison of possession

with intent to distribute five grams or more of cocaine base, and

Harriso n appealed, arguing that the district court should have

given his requested l esser-included instruction. On appeal, we

noted that the statutory elements prong was satisfied and thus

focused our inquiry on "w hether the district court abused its

discretion in concluding that, based on the evidence, a jury could

not rationally find Harrison guilty of simple possession, yet

acquit him of possession with the intent to distr ibute." I d. at

167 (footnote omitted). The evidence at trial showed that the

police seized 49 grams of cocaine base from Harrison's re sidence

and found a loaded weapon and cash in the same drawer as the

cocaine base. Based on these facts and "unrebutted testimony that

such facts and circumstances were consistent with an intent to

distribute and not with possession for personal us e," the court

concl uded that "no rational juror could conclude that Harrison

possessed the crack for his personal use, with no intent to

distribute it." Id . at 168.

In Turner v. United States , 90 S.Ct. 642 (1970), the Supreme

Court held th at the defendant's possession of 14.68 grams of18

cocaine was insufficient to sustain a conviction for distribution

of cocaine. I d. at 656 (holding that possession of 14.68 grams of

a cocaine mixture "is itself consistent with Turner's possessing

the cocaine not for sale but exclusively for his personal use").

In United States v. Chase , 838 F.2d 743 (5th Cir.), cert. denied

,

108 S.Ct. 2022 (1988), the defendant was indicted for, inter alia

,

possession of cocaine with intent to distribute, but the jury

convicted him of simple possession of cocaine as a lesser-included

offense. On appeal, the defendant argued that the district court

erred in giving the lesser-included instruction because the

evidence at trial was inconsistent with simple possession. We held

that the district court properly instructed the jury to consider

simple possession of cocaine as a lesser-included offense because

a "rational jury was entitled to find from the evidence that Chase

intended to consume the one-quarter ounce [approximately 7 grams]

of cocaine he obtained

. . . rather than distribute it." I d. at

747.

The government argues that the evidence at trial was such that

a reasonable jury could not acquit Lucien of possession with intent

to distribute cocaine base but still convict him of possession of

a controlle d substance. In support of this argument, the

government relies on the amount of cocaine base seized at the Manor

Road apartment (16.48 grams), the testimony of Officer Valera that

the amount seized was a distributable quantity, the $1200 in cash

and the two guns found in the apartment, the foil wrappings found

with the cocaine base, and the fact that Lucien was flushing the19

drugs down the toilet when the police arrived. At trial, Officer

V alera testified that, based on his experience, the amount of

cocaine seized from the Manor Road apartment was a distributive

amount and was not for personal use. The government places great

weight on this testimony and argues that it shows that a rational

jury could not find Lucien guilty of simple possession but acquit

him of possession with intent to distribute. We disagree. On

cross-examination, defense counsel asked Valera if fifteen grams of

cocaine base would be a distributive amount, and he testified that

such an amount was "still large enough for distribution in [his]

opinion." Based on our review of the entirety of Valera's

testimony, a jury could rational ly have understood Valera to be

saying merely that 16.48 grams is a distributable amount; in other

words, it is not so small that it could not be distributable, but

not that it was s o large that it could not be for personal use,

especially given that both Lucien and Campbel l were in the

apartment in which the cocaine base was found. See United States

v. Latham

, 874 F.2d 852, 863 (1st Cir. 1989) (holding that

possession of one ounce of cocaine, or 28.35 grams, by two persons

was insufficient to warrant an inference of possession with intent

to distribute).

Because here the amount alone is an insufficient basis on

which to conclude that a rational jury could not convict Lucien of

simpl e possession yet acquit him of possession with intent to

distribute, we consider the other evidence that the gover nment

maintains indicates possession with intent to distribute coca ine14 At oral argument, the government implied t hat the fact that

Lucien was attempting to flush the cocaine base down the toilet was

indicative of distribution. Because it is illegal to possess

cocai ne base, flushing the drugs down the toilet could be

c onsidered by a reasonable juror as consistent with simple

possession.

20 base. First, the government places great emphasis on the

packaging, as serting that the plastic bag containing several

aluminum foil wrappers indicates that the cocaine base was for

distribution rather than personal consumption. While a reasonable

juror could so conclude, not all reasonable jurors would

necessarily have to. On cross-examination, Valera conceded that a

person who purcha sed three packages of cocaine base for personal

use would have three aluminum foil packets. Therefore, the fact

that there were several aluminum foil wrappers in the toilet could

be considered by a reasonable jur or as not inconsistent with

possessi on for personal use. 1 4 Second, the government argues the

$819 in cash found in the bathroom sink and the $408 in cash found

in one of the bedrooms also show possession with intent to

distribute cocaine base. Because there is no evidence in the

record about Lucien's or Campbell's respective occupations, we note

that it is possible that Lucien or Campbell earned this money other

than from selling cocaine base. The government also asserts that

the fact that three guns were found in the apartment is evidence

that Lucien was distributing cocaine base. Although we do not

discount the prevalence of guns in drug trafficking, we do not

place undue weight on the presence of the guns in this case because

Lucien and Campbell could have un told reasons, nefarious and21

otherwise, for keeping guns in the apartment. U nited States v.

Gibbs

, 904 F.2d 52, 59 (D.C. Cir. 1990) ("While the presence of

weapons may be a factor in considering w hether the defendants

intended to distribute the cocaine, the mere presence of weapons is

not, in a nd of itself, dispositive of such intent. For example,

the cautious buyer may feel the gun improves his bargaining

position; or, the drug user may also be a thief who robs persons at

gunpoint to support his habit.") (citation omitted) ( emphasis in

original).

We have no doubt that the evidence at trial was sufficient to

convict Lucien of pos session with intent to distribute cocaine

base, but "when the issue is the propriety of a lesser-included

offense instruction, the test is whether a reasonable jury could

nonetheless find [Lucien] guilty only of simple possession." Id.

(citation omitted). We hold that, based on the evidence at trial,

a reasonable jury could find Lucien guilty of simple possession but

acquit him of possession with intent to distribute. If the amount

of the cocaine base seized at the Manor Road apartment was

significantly greater or if there was additional evidence showing

distribution, such as (by way of example only) testimony tending to

indicate that sales or distributions of some kind were being made

at or from the apartment, the evidence might support the district

court's refusal to give the lesser-included instruction of simple

possession. At some point, however, there is a range of quantities

and other circumstances where it is the jury's role to decide

whether the evidence supports simple possession or possession with15 In Harrison

, we affirmed the district court's refusal to give

a lesser-included instruction of simple possession of a controlled

substance where the evidence showed that the defendant possessed 49

grams of cocaine base. In addition to the fact that the defendant

alone possessed 49 grams of cocaine base, we noted that the cocaine

base was found in the same drawer as a gun and some cash and that

the government introduced unrebutted testimony that the facts and

circumstances of the case were consistent with distribution rather

than personal use. Id. at 167-68.

22 intent to distribute. At one extreme, there are cases in which no

reasonable jury, confronted with the fac ts, could find that the

defendant possessed the drug for any reason other than

distribution. S ee

, e.g

, United States v. White

, 972 F.2d 590, 596

(5th Cir. 1992) (holding that the district court did not err in

refusing to give lesser-included instruction of simple possession

where the defenda nts were found with twenty-one kilos of cocaine

and reasoning that "no rational jury could find that they did not

intend to distribute the cocaine [and that] [t]he sheer quantity of

t he drugs involved negates an inference of personal use"), ce rt.

denied

, 113 S.Ct. 1651 (1993); United States v. Espinosa

, 827 F.2d

604, 615 (9th Cir. 1987) (holding that the defendant's possession

of 69 pounds of cocaine justified an instruction on possession with

intent to distribute and that the district court did not err in

refusing to give a lesser-included instruction of simple

possession), cert. denied , 108 S.Ct. 1243 (1988). 15

At the opposite extreme are cases in which no reasonable jury

could find that the defendant possessed the drug with the intent to

distribute. See

, e.g.

, Turner , 90 S.Ct. at 655-56 (possession of

14.68 grams of cocaine was insufficient to sustain conviction for

distribution). In between these two extremes, however, there are16 We do not imply that the amount of the drugs seized is the

only yardstick by which the district court should measure whether

the evidence at trial permits a rational jury to find the defendant

guilty of simple possession but acquit him o f possession with

intent to distribute. Even if the amount of drugs seized is

relatively small, the district court may refuse to give the lesserincluded instruction on simple possession when there is other

23 many cases in which it is the jury's province to determine whether

the evidence demonstrates simple possession or poss ession with

intent to distribute. S ee Gibbs

, 904 F.2d at 58-59 (holding that

district court erred in refusing to g ive lesser-included offense

instructi on on simple possession where evidence showed that five

persons possessed 15.5 grams of cocaine because "we cannot say that

a mere 15.5 grams of cocaine was inconsistent with personal use");

United States v. Burns

, 624 F.2d 95, 104 (10th Cir.) (holding that

"the evidence was sufficient to support the jury's inference that

these appellants possessed cocaine with an intent to distribute,

but the jury was free also not to draw such inference. [The

appellants] were entitled to jury consideration of the offense of

simple possession."), cert. denied

, 101 S.Ct. 361 (1980) (footnote

omitted). Accepting the argument that 16 grams is a distributive

quantity that precludes a verdict on the lesser-i ncluded offense

would effectively eliminate the range of cases in which the jury

determines what the evidence shows, thereby displacing the jury's

important role in the criminal process. Because a reasonable jury

could convict Lucien of simple possession but acquit him of

possession wi th intent to distribute, we hold that the district

court erred in refusing Lucie n’s request for a lesser-included

instruction on simple possession of a controlled substance. 1 6sufficient evidence that compellingly supports distribution. See

,

e.g.

, United States v. Johnson

, 734 F.2d 503, 505-06 (10th Cir.

1984) (upholding district court's refusal to give a lesser-included

offense instruction on simple possession in a case involving 26.63

grams of cocaine when evidence showed that the defendant owned drug

paraphernalia of the kind used by drug dealers and included

testimony by a witness describing numerous drug transactions with

the defendant).

In many cases, the evidence is such that, despite the small

quantity of drugs seized, the intent to distribute is still in

dispute. In such a case, it is the province of the jury to

determine whether the evidence proves p ossession with intent to

distribute or simple possession. For example, in U nited States v.

Garcia-Duarte

, 718 F.2d 42 (2nd Cir. 1983), the district court

refused to give a lesser-included offense instruction of simple

possession in a case involving 0.23 grams of cocaine, and the jury

convicted the defendant of possession with intent to distribute.

On appeal, the Second Ci rcuit held that "the issue of intent to

distribute was clearly in dispute, and the district judge erred by

not submitting to the jury the lesser included offense charge of

sim ple possession." I d. at 48. In so holding, the court in

Garcia-Duarte did not imply that the evidence was insufficient to

sustain the defendant's conviction for possession with intent to

distribute. Rather, the court held that the jury should have been

permitted t o weigh the evidence and determine whether to convict

the defendant of simple possession or possessi on with intent to

distribute. Id.

24 Accordingly, we reverse his conviction for possession with intent

to distribute cocaine base in violation of section 841(a)(1) and

remand for another trial.

The jury also convicted Lucien of possession of a firearm

during and in relation to the commission of a drug trafficking

offense in violation of 18 U.S.C. § 924(c). Specifically, the

indictment alleged that Lucien "duri ng and in relation to [his]

possession with intent to distribute cocaine base in violation of

[21 U.S.C. § 841(a)(1), a s alleged in Counts One and Two of this

indictment

, did use and carry a firearm. . . in violation of

[18 U.S.C . § 924(c)]." (emphasis added). Because the jury

acquitted Lucien on Count One and we have reversed his conviction17 Because we reverse Lucien's convictions, we need not reach his

argument concerning several alleged instances of prosecutorial

misconduct, although we note that these alleged errors appear harmless and unpreserved in any event.

25 on Count Two, his convi ction on Count Three as alleged in the

indictment cannot stand. 17

Conclusion

For the foregoing reasons, we reverse Lucien's convictions and

remand for retrial.

REVERSED AND REMANDED