United States v. Polite

489 F.2d 679, 1974 U.S. App. LEXIS 10085
CourtCourt of Appeals for the Fifth Circuit
DecidedFebruary 13, 1974
DocketNo. 73-2500
StatusPublished
Cited by6 cases

This text of 489 F.2d 679 (United States v. Polite) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Polite, 489 F.2d 679, 1974 U.S. App. LEXIS 10085 (5th Cir. 1974).

Opinion

WISDOM, Circuit Judge:

Jimmy L. Polite appeals from his conviction of possession with intent to distribute 6% grams of heroin, in violation of 21 U.S.C. § 841(a). On appeal,-he attacks (1) the sufficiency of the evidence; (2) the admission of certain testimony concerning drugs other than those he was charged with possessing in the indictment; and (8) the trial judge’s charge to the jury. We affirm.

The defendant was found in his apartment with 6i/4 grams of heroin about twenty to thirty minutes after a package containing 13 grams of heroin was delivered by mail to his apartment. Customs and postal inspectors had discovered the heroin in the package when it had arrived in the country at San Francisco. The package was mailed from Thailand and addressed to Polite’s residence in Daytona Beach, Florida. The postal authorities arranged a controlled delivery Polite’s residence in of the package to Daytona Beach.

[680]*680About twenty to thirty minutes after this controlled delivery had taken place, four officials, one a postal inspector, another a customs agent, and the other two, Daytona Beach police detectives, entered Polite’s apartment under a valid search warrant. They found Polite in a bedroom with 6% grams of heroin on a coffee table in front of him. They conducted a search to find the remaining heroin. During this search, they found thirty packets of heroin, each wrapped in aluminum foil and containing á mixture which included approximately one milligram of heroin, in a drawer of a dresser in a bedroom across the -hall from the room where Polite had been found. It was established at trial that these “dime . bags” — small packets wrapped in aluminum foil containing about one milligram of heroin — are commonly used in passing heroin on the streets. The authorities also found some butts of marijuana cigarettes in the same bedroom drawer.

While the authorities were searching the apartment, Polite remarked to them, referring to the thirty “dime bags”, “I bet you didn’t think I could package it up that quick”.

The indictment charged possession with intent to distribute only the 6% grams found on the coffee table. The Government relied upon the 30 “dime bags” to prove that Polite had the requisite intent to distribute. Its theory was that the heroin found in packages suitable for street distribution indicated that Polite was a dealer in heroin; that he had received the 13-gram package delivered in the mail for the purpose of selling or distributing most or all of the 13-gram quantity; and that he therefore intended to distribute the 6%, gram quantity found on the coffee table.

Polite advanced a different theory of the evidence at trial. He testified that he was himself addicted to heroin and that he intended to use the entire 13-gram quantity himself. He said that the 30 “dime bags” found in the drawer were not packaged with any heroin from the 13-gram package. He alleged that he had had all of that heroin on the coffee table in front of him at the time he heard that the police were coming; and that when he heard of their arrival, he had wadded up the tinfoil with the rest of the heroin on it and had thrown it into a corner of a closet. He explained the remark he had made about “packing it up that quick” by saying he had made it in order to deflect the authorities from their search before they found the wadded-up foil containing the remaining heroin.

Polite’s first contention concerns the sufficiency of the evidence. He argues that the evidence was consistent with his theory that he was going to keep the heroin for his personal consumption; thus, he says, the jury “could not” have “excluded” this “hypothesis of innocence” as “unreasonable”. This, he argues, means that the evidence was insufficient to support the verdict.

The argument is without merit, because it reflects a misunderstanding of the standard by which this Court reviews the sufficiency of the evidence to support a guilty verdict.

The standard utilized by this Court is not whether in our opinion the evidence and all reasonable inferences therefrom failed to exclude every reasonable hypothesis other than guilty, but whether the jury might so conclude. (Emphasis added.)

Odom v. United States, 5 Cir. 1967, 377 F.2d 853, 855. As we understand it, the appellant’s argument is only that his theory that he intended to use the heroin himself is but “one hypothesis of innocence”, which he is suggesting might “satisfy this Court’s sense of reasonableness”; but we have often held that this is not enough to permit us to reverse the verdict. United States v. Squella-Avendano, 5 Cir. 1973, 478 F.2d at 433, 436. We must uphold a guilty verdict if there is any “theory of the evidence from which the jury might have excluded ev[681]*681ery hypothesis except guilt beyond a reasonable doubt”. Odom, swpra, 377 F.2d at 855 (emphasis supplied). Without recounting every piece of evidence leading to this conclusion, we conclude from our review of the evidence that-this standard was met in this case.

The appellant’s second contention is a dual one. He contends that the trial judge erred in admitting testimony (a) about the thirty packets of heroin found in the dresser drawer; and also (b) about the marijuana cigarette butts found in the drawer. Both, he argues, amounted to evidence of other crimes, and their introduction was therefore incurably prejudicial.

We disagree. The evidence concerning the thirty packets of heroin was admissible to show intent, as we have already noted, and evidence of other similar crimes is admissible to show intent. See, e. g., Mathews v. United States, 5 Cir. 1969, 407 F.2d 1371, 1381-1382. The testimony concerning marijuana was not admissible to show intent, but its admission did not, in our view, constitute reversible error. The testimony was confined to two statements made by two of the participants in the search of Polite’s apartment. They amounted to no more than descriptions of what they saw in the bedroom drawer; they were mere statements of having observed the res gestae. Later in the trial, when the Government sought to introduce the marijuana butts as an exhibit, and to have a chemist testify that the substance had been chemically identified as marijuana, the trial judge excluded the exhibit and instructed the jury to disregard the chemist’s testimony concerning marijuana. In this state of the record, we cannot hold that the brief allusions to marijuana in the testimony of the customs agent and police detective who searched the apartment were sufficiently prejudicial to require a new trial.

The principal objection to the charge to the jury concerns the trial judge’s instruction that:

[i]f you should find, beyond a reasonable doubt, that the Defendant had knowing and intentional possession, as charged, the fact of such possession alone, of a large quantity and/or quality of heroin, unless explained to the satisfaction of the jury, by the evidence in the case, permits, but does not require the jury to draw the inference and find that the heroin was possessed with intent to distribute

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489 F.2d 679, 1974 U.S. App. LEXIS 10085, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-polite-ca5-1974.