United States v. Ramon Martinez

54 F.3d 1040, 1995 U.S. App. LEXIS 10507, 1995 WL 276948

Opinions

Judge CALABRESI concurs and Chief Judge NEWMAN dissents in separate opinions.

WALKER, Circuit Judge:

This appeal presents the single question whether the evidence of intent to distribute narcotics was sufficient to allow that issue to be decided by a jury. Ramon Martinez appeals from a judgment of the United States District Court for the Southern District of New York (Leonard B. Sand, Judge) convicting him, after a jury trial, of one count of possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1), one count of using and carrying a firearm in relation to a drug trafficking crime, 18 U.S.C. § 924(c), and one count of possession of a firearm by a felon, 18 U.S.C. § 922(g).

On January 4, 1995, a divided panel, in a majority opinion by Chief Judge Newman, with Judge Calabresi concurring and Judge Walker dissenting, concluded that the evidence of intent to distribute was insufficient, vacated the convictions under 18 U.S.C. §§ 841(a)(1) and 924(c), and ordered entry of a judgment of conviction for simple possession under 21 U.S.C. § 844. Thereafter, while a poll to hold an in banc rehearing was being conducted, Judge Calabresi reconsidered his earlier decision and voted to affirm the convictions on all counts. Therefore, with the issuance of this opinion, the earlier decision in this case, reported at 44 F.3d 148 (2d Cir.1995), is vacated, the mandate is withdrawn, and a new mandate affirming the judgment of the district court in all respects will issue.

BACKGROUND

Taken in the light most favorable to the Government, the evidence permitted the jury to find the following facts. In late March, 1993, a confidential informant told the police that a man named “Juan” was dealing drugs out of Apartment 4E at 134 Elliott Place in the Bronx. Based on the informant’s tip, officers of a joint federal-state task force obtained a “no-knock” search warrant for the apartment. On March 25, 1993, in preparation for executing the search warrant, Detective Gerard Gardiner and other law enforcement officers entered the building and set up a hydraulic ram in front of the door to the apartment. As the officers began breaking down the door, they heard a man inside, later identified as José Garcia, yell “policía” (Spanish for police) and saw a man, later identified as appellant Ramon Martinez, holding a gun.

Once inside the apartment, the officers observed only Garcia and Martinez. Garcia was standing in the kitchen and the defendant Martinez, holding the loaded gun, was standing in the living room. Martinez began running to the back of the apartment, still carrying the gun in his hand. Detective Gardiner pursued Martinez to the rear bedroom, where he witnessed Martinez throw the pistol out the window. Martinez then reached toward the groin area of his pants as if to remove something. The detective apprehended Martinez and seized from his person a black leather pouch containing five bags of white powder. One bag turned out to contain an eighth of an ounce (about grams) of cocaine, while the other four contained a total of one-half ounce of “cut,” a non-narcotic powder commonly used to dilute cocaine. A further search of Martinez revealed a small hand-held scale capable of weighing amounts up to one gram.

Detective Gardiner then searched Garcia, but found no contraband or weapon on Garcia’s person. Gardiner acknowledged, however, that “to a very specific degree” Garcia matched the description of the dealer “Juan” given by the informant. Gardiner also learned at some point that “Juan” might be an alias for José Garcia. After taking Garcia into custody, Gardiner and the other officers searched the apartment. They found another eighth of an ounce of cocaine, a grinder, an electronic scale that could measure 100-gram quantities, a sifter used to mix cocaine with “cut,” and tin foil in plain view on a table in the living room. In addition, the police discovered $1,078 in cash secreted inside the frame of a closet door. Following his arrest, Garcia gave as his address 130 Elliott Place and not 134 Elliott Place where the search and arrests took place.

At trial, Gardiner, testifying as an expert on narcotics trafficking, opined that the hand-held scale found on Martinez could be used to weigh small quantities of narcotics up to one gram and that cocaine is commonly sold in half-gram and one-gram quantities at the retail level. He further explained that “cut” is usually mixed with cocaine “for the purpose of increasing the drug dealer’s profits as well as making cocaine ingestible without poisoning the person who is ingesting it.” Detective Gardiner further testified that following Martinez’s arrest, when “asked whether he used any drugs,” the defendant “indicated to me that he did not.”

In summation, Martinez, who did not testify or offer any evidence on the point, argued that he was a drug user who possessed for his personal use the cocaine found on his person. To support this argument, he pointed to a May, 1988 judgment of conviction that had been put into evidence by the government to prove that he possessed the firearm as a convicted felon. The judgment provided, as part of the sentence, that defendant’s supervised release be conditioned upon his participation in a program of urinalysis testing and, if necessary, drug treatment.

The district court charged the jury that they could convict Martinez of the lesser included offense of simple possession. The jury rejected this option because they found the elements of the distribution offense established, and they also convicted Martinez on the other two counts of the indictment. The district court sentenced Martinez to a total of 78 months in prison: concurrent 18-month terms for drug-trafficking and possession of a firearm by a felon, and a consecutive 60-month term for the § 924(c) firearms offense.

DISCUSSION

On appeal, Martinez contends that the evidence was insufficient to prove his intent to distribute cocaine. He argues that a finding of such intent may not be based on the 3$ grams of cocaine and the items in his possession, and that the additional 3)6 grams of cocaine and the other items found on the table may not be attributed to him simply because he was on the premises.

It is well settled that a defendant seeking to overturn a conviction based upon insufficiency of the evidence bears a “heavy burden.” United States v. Sureff, 15 F.3d 225, 228 (2d Cir.1994); United States v. Casamento, 887 F.2d 1141, 1156 (2d Cir.1989), cert. denied, 493 U.S. 1081, 110 S.Ct. 1138, 107 L.Ed.2d 1043 (1990). Not only must the evidence be viewed in the light most favorable to the government and all permissible inferences drawn in its favor, United States v. Nersesian, 824 F.2d 1294, 1302 (2d Cir.), cert. denied, 484 U.S. 957, 108 S.Ct. 355, 98 L.Ed.2d 380 (1987), but if the evidence, thus construed, suffices to convince any rational trier of fact of the defendant’s guilt beyond a reasonable doubt, then Martinez’s conviction must stand. United States v. Resto, 824 F.2d 210, 212 (2d Cir.1987) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979)). The government’s case need not exclude “every possible hypothesis of innocence,” United States v. Friedman, 998 F.2d 53, 59 (2d Cir.1993) (quoting United States v. Soto, 716 F.2d 989, 993 (2d Cir.1983)), and it is the task of the jury, not the court, to choose among competing inferences. United States v. Stanley, 928 F.2d 575, 577 (2d Cir.), cert. denied, 502 U.S. 845, 112 S.Ct. 141, 116 L.Ed.2d 108 (1991). Moreover, the jury’s verdict may be based entirely on circumstantial evidence. United States v. Libera, 989 F.2d 596, 601 (2d Cir.), cert. denied, — U.S. —, 114 S.Ct. 467, 126 L.Ed.2d 419 (1993).

We emphasize, however, that where a fact to be proved is also an element of the offense — here, intent to distribute, which is usually established only by inference — it is not enough that the inferences in the government’s favor are permissible. We must also be satisfied that the inferences are sufficiently supported to permit a rational juror to find that the element, like all elements, is established beyond a reasonable doubt. See United States v. Soto, 47 F.3d 546, 549 (2d Cir.1995); United States v. D’Amato, 39 F.3d 1249, 1256 (2d Cir.1994).

The Supreme Court has made it clear that the possession of a small quantity •of drugs standing alone is insufficient to prove an intent to distribute. Turner v. United States, 396 U.S. 398, 422-23, 90 S.Ct. 642, 655, 24 L.Ed.2d 610 (1970) (14.68 grams insufficient); see also United States v. Boissoneault, 926 F.2d 230, 234 (2d Cir.1991) (5.31 grams); United States v. Gaviria, 740 F.2d 174, 184 (2d Cir.1984). But, since the statute specifies no minimum amount, any amount of drugs, however small, will support a conviction when there is additional evidence of intent to distribute. See United States v. Ramirez, 608 F.2d 1261, 1264 (9th Cir.1979) (“[W]here there is other evidence of ... intent to distribute, possession of as small a quantity as 4 or 5 grams is sufficient to establish an intent to distribute....”); United States v. Peterson, 768 F.2d 64, 66 n. 1 (2d Cir.) (3.8 grams of heroin; citing Ramirez with approval), cert. denied, 474 U.S. 923, 106 S.Ct. 257, 88 L.Ed.2d 264 (1985).

In this case, viewing the evidence in its totality, United States v. Mariani, 725 F.2d 862, 865-66 (2d Cir.1984), and drawing all permissible inferences in the government’s favor, Sureff, 15 F.3d at 228, we conclude that the evidence was sufficient to support the jury’s finding beyond a reasonable doubt that Martinez possessed cocaine with an intent to distribute.

The jury was entitled to credit the admission by Martinez to Detective Gardiner that at the time of his arrest he did not use any drugs over any implication to the contrary that could be drawn from the judgment of conviction, entered five years earlier, that prescribed participation in a program of urinalysis testing and, if necessary, drug treatment. Indeed, the government did not have to prove beyond a reasonable doubt the subsidiary fact that Martinez did not use drugs. See United States v. Schwab, 886 F.2d 509, 511 (2d Cir.1989), cert. denied, 493 U.S. 1080, 110 S.Ct. 1136, 107 L.Ed.2d 1041 (1990); United States v. Viafara-Rodriguez, 729 F.2d 912, 913 (2d Cir.1984) (“[T]he burden does not operate upon each of the many subsidiary facts upon which the prosecution may collectively rely to persuade the jury that a particular element has been established beyond a reasonable doubt.”).

In addition, and particularly in light of Martinez’s admission that he was not a user, his physical possession of a scale, cut, and a loaded firearm supported the jury’s rejection of his personal-use defense. “Possession of equipment to weigh, cut and package drugs is highly probative of a purpose to distribute.” United States v. Pugh, 566 F.2d 626, 628 (8th Cir.1977), cert. denied, 435 U.S. 1010, 98 S.Ct. 1885, 56 L.Ed.2d 393 (1978). There was credible testimony that street sales of between one-half and one gram were common and that the defendant’s scale was capable of weighing amounts up to one gram. Similarly, there was credible testimony that “cut” was used to increase seller’s profits and reduce toxicity. Moreover, Martinez’s possession of the loaded firearm, irrespective of whether he was or was not a user, and especially in the context of this case, by itself provided strong evidence of his intent to distribute. See, e.g., United States v. White, 969 F.2d 681, 684 (8th Cir.1992) (“Because a gun is ‘generally considered a tool of the trade for drug dealers, [it] is also evidence of intent to distribute.’ ” (quoting United States v. Schubel) 912 F.2d 952, 956 (8th Cir.1990))); United States v. Garrett, 903 F.2d 1105, 1113 (7th Cir.) (loaded pistol found directly underneath bag containing a small amount of cocaine was, together with other factors, sufficient to infer intent to distribute, and supported conviction for possession .with intent to distribute), cert. denied, 498 U.S. 905, 111 S.Ct. 272, 112 L.Ed.2d 227 (1990); United States v. Rush, 890 F.2d 45, 49, 52 (7th Cir.1989) Goaded weapon found in car defendant was approaching when arrested was relevant evidence in prosecution for possession of heroin with intent to distribute; weapon was a “ ‘tool’ of the trade,” and was an “essential part of the crime of possession with intent to distribute”); United States v. Dunn, 846 F.2d 761, 764 (D.C.Cir.1988) (as a “tool[ ] of the narcotic trade,” loaded gun found on couch near defendant supported inference of intent to distribute where defendant constructively possessed drugs in house); United States v. Matra, 841 F.2d 837, 841 (8th Cir.1988) (intent to distribute may be inferred from, among other things, the presence of firearms). The jury was entitled to reject as implausible the scenario, urged by Martinez, that Garcia — without any henchman or any weapons to protect his valuable supply of drugs, paraphernalia and money — would allow an armed drug addict into the apartment to purchase drugs.

In short, this is not a case like Boisso-neault where there was no additional evidence beyond the possession of the amount of drugs in question from which intent could be inferred. We stated in Boissoneault:

At the time of his arrest, Boissoneault possessed none of the paraphernalia usually possessed by drug dealers, such as scales, beepers, and other devices, nor did he possess any of the materials needed to process cocaine or to package it in druggist folds. Nor was there any evidence that Boissoneault owned a gun or other weapon, which would have helped sustain an inference that he was engaged in the dangerous business of drug trafficking.

926 F.2d at 234.

In this case the opposite is true. The defendant possessed drug paraphernalia, namely, a scale and cut, as well as a gun from which “an inference that he was engaged in the dangerous business of drug trafficking,” id., could properly be drawn.

Because Martinez has not overcome the “heavy burden” of showing that the evidence was insufficient for the jury to find that he possessed cocaine with intent to distribute, we affirm the judgment of the district court.