United States v. Germany

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 13, 1999
• Docket: 99-50126
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-50126 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JAMES WALTER GERMANY,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. MO-98-CR-50-ALL --------------------

October 6, 1999

Before HIGGINBOTHAM, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:*

James Walter Germany appeals his conviction for conspiracy

to distribute a controlled substance, 21 U.S.C. § 846, two counts

of possession with intent to distribute a controlled substance,

21 U.S.C. § 841, and possession of a firearm by a convicted

felon, 18 U.S.C. § 922.

Germany argues that the district court abused its discretion

by refusing to instruct the jury that intoxication could be

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 99-50126 -2-

considered in determining whether Germany had the specific intent

to distribute a controlled substance or participate in a

conspiracy to distribute a controlled substance. The district

court refused to give the instruction based on its erroneous

belief that the crimes for which Germany was being tried were

general intent crimes. Distribution of a controlled substance

and conspiracy to distribute a controlled substance are specific,

rather than general, intent crimes. See United States v.

Cartwright, 6 F.3d 294, 303 (5th Cir. 1993); United States v.

Kaufman, 858 F.2d 994, 1000 (5th Cir. 1988). However, Germany

has not shown the district court abused its discretion by

refusing to give that instruction because he did not produce

evidence at trial showing that his intoxicated condition rendered

him unable to form the required specific intent for these crimes.

See Mathews v. United States, 485 U.S. 58, 62 (1988); United

States v. Stowell, 953 F.2d 188, 189 (5th Cir. 1992); see also

United States v. Tello, 9 F.3d 1119, 1128 (5th Cir. 1993) (court

of appeals may affirm district court on any valid ground

supported by the record). The district court’s judgment is

AFFIRMED.