           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                           April 23, 2008

                                       No. 07-30520                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES,

                                                   Plaintiff-Appellee,
v.

THOMAS RAY BURTON,

                                                   Defendant-Appellant.



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                           USDC No. 5:06-CR-50098-01


Before KING, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Thomas Ray Burton appeals his conviction for
possession with intent to distribute fifty or more grams of methamphetamine,
in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; possession of a firearm by
a convicted felon, in violation of 18 U.S.C. § 922(g)(1); and possession of a
firearm during a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1).
Finding no reversible error, we affirm.
                                              I.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-30520

         On April 19, 2006, Officer Chasen Swan with the Bossier City Police
Department, working undercover, arranged to buy drugs from Barbara Jackson.
Jackson did not have methamphetamine with her, but agreed to meet Swan
later.    The police followed Jackson to a storage facility with an attached
apartment. A motorcycle and pickup truck were parked outside the apartment;
both were registered to Burton. After leaving the apartment, Jackson went
home, called Swan and sold him 2.1 grams of methamphetamine. On April 26,
2006, Swan purchased one gram of methamphetamine from Jackson. On April
27, 2006, Swan went to Jackson’s residence to purchase drugs.            Burton’s
motorcycle was parked outside Jackson’s house, and she would not sell drugs to
Swan while the motorcycle was parked there. After the motorcycle left, Jackson
called Swan and agreed to sell him one gram of methamphetamine.
         On May 10, 2006, an officer drove by the Red Roof Inn in Bossier City and
noticed Burton’s motorcycle and Jackson’s vehicle parked outside. The motel
was placed under surveillance, and Jackson and Burton were observed leaving
the motel together. After going to a casino and two fast food restaurants,
Jackson dropped Burton off at the motel and returned to her residence. Burton
left the motel, went by himself to Red Lobster on his motorcycle, and then
returned to the motel.
         Later that day, the Bossier City Police obtained and executed a search
warrant on room #102 of the Red River Inn, registered to Jackson. The search
warrant indicated Swan’s belief that Jackson was present in the motel with
methamphetamine. At the time the search warrant was executed, Burton was
the only person in the room. Methamphetamine and $17,262 were found in a
bag on the counter in the bathroom, as well as three glass pipes for smoking
methamphetamine, a digital scale, small plastic bags, and syringes. Three
firearms were also found in the hotel room. When confronted with the guns and
narcotics, Burton stated that everything in the room was his. Burton also stated


                                         2
                                      No. 07-30520

that he had left the guns, money, and methamphetamine in the saddlebags on
his motorcycle when he went to the Red Lobster. Burton told Swan that he and
Jackson had obtained the drugs in Dallas.1
       On May 24, 2006, Burton was indicted on five counts: Count One,
possession with intent to distribute fifty or more grams of methamphetamine,
in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; Count Two, possession of
a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1); Count Three,
possession of a firearm during a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1); and two forfeiture counts.
       Burton proceeded to trial. In his defense, Burton presented several
witnesses who had worked with him or were related to him and who testified
that Burton was a reliable worker and that he avoided contact with guns
because of his prior conviction. Burton himself testified that the reason he told
the officers that the guns, drugs, and money belonged to him was because he
wanted to protect Jackson since he was romantically involved with her. On the
stand, he admitted that he committed perjury at an earlier suppression hearing
when he testified that he never told the officers the items were his. He also
testified that he did not know Jackson was involved with methamphetamine.
       During the course of the trial, Burton attempted to introduce several
handwritten letters that he had received while he was in jail from Jackson in an
effort to show that she had manipulated him into confessing. In the first letter,
Jackson says that she misses Burton and that he is the one for her. In the
second letter, Jackson again professes her love for Burton and also says that
Burton should be getting a letter from the clerk of court. Jackson tells Burton
that “it is going to help us out,” but “you don’t have to go along with it if you
don’t want.”      The third letter contained the most possibly exculpatory


       1
        Jackson, who is currently a fugitive, was subsequently arrested at her house. During
a search of her home, the police found methamphetamine and drug paraphernalia.

                                             3
                                  No. 07-30520

statements. In it, Jackson says, “Sorry about the other day, I wasn’t myself,
didn’t want to get you in trouble.” Jackson continues, “It makes me feel like shit
to even think that there was [a warrant out for me] and for you to have gotten
in trouble cause of me.” She also again expresses her love for Burton. The
Government objected to the admission of the letters on the basis of hearsay, and
the district court sustained the objection in part. In sustaining the objection, the
court stated that “if the verbatim parts of the letter are read, how will the jury
know that it’s not being offered for the truth.” The court permitted Mr. Burton
to testify to the letters and to their effect on him, but did not allow him to read
from the letters or present the letters themselves to the jury.
      On February 7, 2007, after three days of trial, the jury found Burton guilty
of Counts One, Two, and Three.          Burton was sentenced to 300 months
imprisonment. He timely appealed.
                                        II.
      Burton first argues that the district court erred in refusing to permit the
jury to review the contents of three letters sent to Burton by Jackson. This
Court reviews the district court’s decision to admit or exclude evidence for abuse
of discretion. Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 265 (5th Cir.
2007). If an abuse of discretion has occurred, we apply the harmless error
doctrine to determine if a substantial right of the complaining party was
affected. Id.
      We do not believe that the district court erred in failing to allow Burton to
submit the actual letters to the jury. Hearsay is “a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in evidence
to prove the truth of the matter asserted.” FED. R. EVID. 801(c). Burton argues
that the statements were not offered for the truth of the matter asserted, that
is, they were not offered to prove that Jackson apologized for getting him in
trouble or that the drugs and guns were Jackson’s, not his. Burton further

                                         4
                                        No. 07-30520

contends that the letters were offered to show his state of mind after receiving
the letters; namely that he still believed that Jackson loved him. However,
regardless of the purposes for which the statements were offered, evidence must
be excluded “if its probative value is substantially outweighed by the danger of
unfair prejudice.” FED. R. EVID. 403. The prejudice inquiry asks whether “the
jury [was] likely to consider the statement for the truth of what was stated with
significant resultant prejudice.” United States v. Reyes, 18 F.3d 65, 70 (2d Cir.
1994).     Here, there was considerable danger that the jury would consider
Jackson’s statements about getting Burton “in trouble” for the truth and hence
as evidence of his innocence. Given these concerns, we cannot say the district
court abused its broad discretion in refusing to permit the actual letters to be
submitted to the jury.2
       Nonetheless, even if the district court erred in excluding the letters, any
error was harmless. For an error to require reversal, the exclusion of the
evidence in question must have substantially prejudiced Burton’s rights. United
States v. Sanders, 343 F.3d 511, 519 (5th Cir. 2003). Error does not require a
reversal if “beyond a reasonable doubt the error complained of did not contribute
to the verdict obtained.” United States v. Cornett, 195 F.3d 776, 785 (5th Cir.
1999). Here, Burton himself testified that he received letters from Jackson while
he was in jail, that in those letters Jackson said she loved him and apologized
for getting him in trouble, and that because of those letters he abided by his
earlier confession. Regardless of the failure to allow the actual letters to be

       2
         Burton also argues that even if the letters are hearsay, they fall within the Federal
Rule of Evidence 803(3) exception for statements of a declarant’s “then existing mental,
emotional, or physical condition.” FED. R. EVID. 803(3). However,“before a statement,
otherwise hearsay, can be admitted under 803(3) to show the declarant’s then existing state
of mind, the declarant’s state of mind must be a relevant issue in the case.” Rock v. Huffco Gas
& Oil Co., 922 F.2d 272, 279 (5th Cir. 1991). Jackson’s state of mind is not at issue in this
case; rather, it is Burton’s state of mind that is relevant to the issue of whether or not his
confession was false. Therefore, the district court did not abuse its discretion in excluding the
letters under Rule 803(3).

                                               5
                                  No. 07-30520

introduced, the jury was made aware of Burton’s argument and the content of
the letters that supported his argument. In light of Burton’s detailed testimony
regarding the letters, the failure to admit the actual letters had little, if any,
effect on the jury’s verdict. See United States v. Faust, 850 F.2d 575, 586 (9th
Cir. 1988) (holding that where defendant was permitted to testify about contents
of letters and his state of mind, the admission of the letter would not likely have
affected the verdict).
                                        III.
      Burton also argues that the evidence was insufficient to support his
conviction for possession of methamphetamine with intent to distribute.
Because Burton did not file a motion for acquittal at the close of evidence or after
the Government presented its case, he failed to preserve the issue of sufficiency
for appeal, and his sufficiency challenge is reviewed only for a manifest
miscarriage of justice. United States v. Avants, 367 F.3d 433, 449 (5th Cir.
2004). A miscarriage of justice exists “only if the record is devoid of evidence
pointing to guilt, or . . . the evidence on a key element of the offense was so
tenuous that a conviction would be shocking.” United States v. Laury, 49 F.3d
145, 151 (5th Cir. 1995).
      To convict Burton of possession of methamphetamine with intent to
distribute, the Government was required to prove that he (1) knowingly; (2)
possessed methamphetamine; (3) with the intent to distribute it. See United
States v. Martinez-Lugo, 411 F.3d 597, 599 n.1 (5th Cir. 2005). “Possession can
be actual or constructive, joint among defendants, and established by direct or
circumstantial evidence.” United States v. Martinez, 190 F.3d 673, 676 (5th Cir.
1999).
      Burton has not shown that his conviction resulted in a manifest
miscarriage of justice. The evidence adduced by the Government, when viewed
in light most favorable to the verdict, established that Burton was associated

                                         6
                                       No. 07-30520

with Jackson, a known drug dealer; that Jackson only sold Swan
methamphetamine after visiting Burton; that Burton was present in a motel
room with a large quantity of methamphetamine and drug paraphernalia; and
that Burton confessed that the drugs, guns, and money were his. Burton gave
inconsistent statements about his confession, and admitted to perjuring himself
during the suppression hearing. Finally, the jury heard Burton himself explain
that he confessed only because of his feelings for Jackson. The jury was entitled
to draw its own conclusions regarding Burton’s credibility and to either reject or
accept his explanation for his confession. See, e.g., United States v. Torres, 212
F. App’x 361, 365 (5th Cir. 2007) (“The jury is free to choose among reasonable
interpretations of evidence, and the evidence need not exclude all possibility of
innocence.”). Likewise, the jury was not required to believe the testimony of the
defense witnesses.3 In view of the evidence presented at trial, Burton has not
shown that “the record is devoid of evidence pointing to guilt, or . . . the evidence
on a key element of the offense was so tenuous that a conviction would be
shocking.”      Laury, 49 F.3d at 151; see also Torres, 212 F. App’x at 366-67
(holding that presence of drugs, combined with possession of baggies and other
drug paraphernalia, sufficient to support conviction for possession with intent
to distribute).
                                              IV.
       In conclusion, we find that the district court did not abuse its discretion
in refusing to permit the jury to view the letters written by Jackson and that the
evidence was sufficient to support Burton’s conviction for possession with intent
to distribute methamphetamine. As such, we AFFIRM his conviction.

       3
        Burton also argues that because the investigation originally targeted Jackson, the
evidence is insufficient to support his conviction. This argument is meritless; the fact that an
investigation originally targeted one person does not prohibit the eventual indictment of
another individual. Cf. United States v. Gutierrez, 343 F.3d 415, 420 (5th Cir. 2003) (“That the
operation resulted in the indictment of persons not originally targets of the investigation does
not establish improper government conduct.”).

                                               7
No. 07-30520




     8
