     Case: 16-60738      Document: 00514099859         Page: 1    Date Filed: 08/02/2017




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

                                      No. 16-60738
                                                                               Fifth Circuit

                                                                             FILED
                                                                        August 2, 2017

UNITED STATES OF AMERICA,                                               Lyle W. Cayce
                                                                             Clerk
              Plaintiff - Appellee

v.

BRENT CLEMONS,

              Defendant - Appellant




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 4:10-CR-17-1


Before DAVIS, GRAVES, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:*
       The district court found Brent Clemons guilty of criminal contempt for
appearing at a revocation hearing under the influence of marijuana. Clemons
maintains the evidence was not sufficient to show he was under the influence
of marijuana. We agree and therefore vacate his conviction.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 16-60738
                                          I.
      Clemons’s saga began in 2011 when he pled guilty to being a felon in
possession of a firearm. While he was on supervised release for that offense,
he violated three conditions of his release: he (1) was found guilty of an
intoxication-related offense; (2) tested positive for marijuana on two occasions;
and (3) failed to pay his $1,500 fine.
      At a revocation hearing addressing those alleged violations, Clemons’s
probation officer recommended leniency: one day of detention, covered by credit
for time served, and six additional months of supervised release.             The
government deferred to that recommendation.          But the district court was
skeptical that leniency was appropriate and probed further into Clemons’s
behavior on supervised release.      The court was especially concerned that
Clemons’s family, not Clemons himself, had made a partial payment toward
his fine. Clemons took the witness stand to answer questions about the source
of the payment.
      During his testimony, Clemons struggled to answer questions
coherently, appeared confused, and mumbled. His attorney urged him to speak
clearly and into the microphone.         After a few minutes, the district court
interjected to ask whether Clemons had a speech defect, and then began
questioning him directly.
           THE COURT: Are you having some difficulty expressing
      yourself?
            CLEMONS: Like at the moment my mind’s kind of blank
      right now.
            THE COURT: And is your mind blank for any legal reason?
            CLEMONS: No, sir.
            THE COURT: It’s blank for an illegal reason?
            CLEMONS: No, sir.

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                                No. 16-60738
           THE COURT: Are you able to appreciate what’s happening
     here today?
            CLEMONS: Yes, sir.
            THE COURT: Have you had any intoxicants?
            THE WITNESS: No, sir.
            THE COURT: Is there something about this line of
     questioning which you don’t understand and you have some
     difficulty responding to?
          CLEMONS:         Anxieties, trying to—you know,         feeling
     anxious, really.
            THE COURT: I can’t understand you.
           CLEMONS: Some anxiety problems, kind of feeling anxious
     right now.
            THE COURT: What kind of problems?
            CLEMONS: It’s for anxiety.
            THE COURT: Anxiety?
            CLEMONS: Yes, sir, I’m just kind of –
            THE COURT: Do you have anxiety problems?
            CLEMONS: Yes, sir.
            THE COURT: Do you take medication for anxiety?
            CLEMONS: Yes, sir. I’ve got them with me right now.
            THE COURT: All right. Take your medication out.
     Clemons produced a bottle of pills from his pocket and claimed he had
taken the antianxiety medication that morning. Clemons’s probation officer
determined the medication was Buspirone, also known as BuSpar, and
confirmed that Clemons had been prescribed this medication to treat his
anxiety. The probation officer noted that a common side effect of BuSpar is “a
confusional state.”



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                                 No. 16-60738
     Concerned that Clemons might be under the influence of an intoxicant,
the court recessed so the probation officer could administer a drug test. The
test came back positive for THC, a substance found in marijuana, and positive
for “PPX,” a designation for prescription medication the probation officer
presumed to be BuSpar. Clemons admitted to his probation officer that he had
smoked marijuana approximately one week prior to the hearing.
     After the recess, the court recalled Clemons to the stand, but found he
was still confused. The court then continued the hearing to a later date and
ultimately sentenced Clemons on the revocation to 10 months in prison to be
followed by 26 months of supervised release. Clemons does not challenge that
sentence.
     He does appeal the additional action the court took. It ordered the
government to file a criminal contempt charge based on Clemons’s behavior at
the revocation hearing. At the contempt hearing that followed, the parties
agreed that Clemons had struggled to communicate coherently at his
revocation hearing, but the only evidence the government presented—
testimony from Clemons’s probation officer—was that the incoherence could
have been caused by marijuana, anxiety, antianxiety medication, or any
combination of these factors. Clemons’s probation officer testified that there
was no way to tell whether Clemons was under the influence of marijuana on
the day of the hearing because the drug test could not show when Clemons
ingested marijuana. Traces of marijuana can remain in a person’s urine for
up to a month.
     The probation officer also testified that Clemons did not smell like
marijuana at the revocation hearing and was able to communicate normally
during the recess.   Rather than appearing high on marijuana during the
recess, the probation officer noted Clemons looked “really stressed out” about
court and did not want to eat.
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                                     No. 16-60738
      The district court credited this evidence at the contempt hearing,
observing that “it’s an open question as to when the presence of marijuana was
placed in [Clemons’s] system.” Nevertheless, the court concluded beyond a
reasonable doubt that Clemons “had used marijuana at a time close enough to
the hearing where the usage of that marijuana affected his conduct.” The court
thus found Clemons guilty of criminal contempt and sentenced him to 6
months in prison to be served consecutively to his 10-month revocation
sentence.
                                            II.
       A defendant is guilty of criminal contempt under 18 U.S.C. § 401(1) if
evidence establishes beyond a reasonable doubt that the defendant: (1)
engaged in misbehavior; (2) in or near the presence of the court; (3) with
criminal intent; (4) that resulted in an obstruction of the administration of
justice. United States v. Ortlieb, 274 F.3d 871, 874 (5th Cir. 2001). The district
court found the government proved these elements because it concluded that
Clemons appeared impaired and under the influence of an illegal drug during
his revocation hearing. 1
      Clemons appears to concede that his behavior was disruptive, but he
argues the evidence cannot support a finding that marijuana caused his
behavior. He asserts the government did not show his behavior was due to
anything beyond nervousness and anxiety. That is, he contends the
government failed to prove that he was under the influence of any intoxicant
at all. Alternately, he argues the government failed to prove his confusion was



      1  The government implies Clemons could be guilty of contempt even if he was not
under the influence of marijuana, but the contempt charge is limited to Clemons’s alleged
use of an “illegal drug.” So the conviction is limited to that ground. See United States v.
Martinez, 686 F.2d 334, 345 (5th Cir. 1982). The district court thus relied solely on the
alleged marijuana use, and we will not consider the possibility that other behavior could
constitute contempt.
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                                  No. 16-60738
caused by marijuana and not his legally-prescribed antianxiety medication,
which is known to cause a “confusional state” and nervousness.
      Our review is highly deferential to reasonable inferences of fact drawn
by the trial court. United States v. Cardenas, 9 F.3d 1139, 1156 (5th Cir. 1993).
Witness credibility and the weight of the evidence, for example, are the
exclusive province of the trial court. United States v. Allen, 587 F.3d 246, 257
(5th Cir. 2009). We may not reverse a verdict merely because we would have
weighed the evidence differently. Id. Our review is nevertheless guided by
reasonableness and the high burden of proof a criminal conviction requires. A
verdict “may not rest on mere suspicion, speculation, or conjecture, or an overly
attenuated piling of inference on inference.” United States v. Rojas Alvarez,
451 F.3d 320, 333 (5th Cir. 2006) (quoting United States v. Pettigrew, 77 F.3d
1500, 1521 (5th Cir. 1996)). If the evidence, viewed with all inferences drawn
favorably in support of the verdict, is not enough for a rational trier of fact to
convict beyond a reasonable doubt, the conviction must be vacated. Id. at 334.
There is reasonable doubt if the evidence gives equal or nearly equal support
to a theory of guilt and a theory of innocence. United States v. Santillana, 604
F.3d 192, 195 (5th Cir. 2010).
      Even the substantial deference we owe the factfinder is not enough to
bridge the chasm between the evidence here—in which the sole witness could
not even say it was more likely than not that Clemens was under the influence
of marijuana—and the required finding that the court be convinced of that fact
beyond a reasonable doubt. In finding Clemons so impaired, the district court
relied on Clemons’s history of using marijuana, his admission that he had used
marijuana a week before the revocation hearing, the drug test that came back
positive for THC, and Clemons’s behavior during the revocation hearing—
namely that he had difficulty understanding and responding to questions,
struggled to hold his head up, mumbled, and came to court looking disheveled
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                                     No. 16-60738
and without a belt.     But even considering the cumulative weight of this
evidence, it cannot add up to a guilty verdict.
      First, Clemons’s history of marijuana use has little bearing on whether
he was under the influence of marijuana when he took the stand at his
revocation hearing. Indeed, the law recognizes that evidence of past acts is “of
slight probative value” when it comes to determining what happened on a
particular occasion. Jones v. S. Pac. R.R., 962 F.2d 447, 449 (5th Cir. 1992);
see generally FED. R. EVID. 404(b)(1). Clemons’s admission that he used
marijuana a week prior to the hearing is similarly unhelpful. It does not
demonstrate that Clemons ingested marijuana close enough to the hearing for
it to affect his conduct that day.
      That Clemons’s drug test came back positive for THC the day of the
hearing is likewise insufficient to show that he was under the influence of it at
the hearing. The probation officer testified repeatedly that the drug test would
have been positive for marijuana whether Clemons consumed it the morning
of his hearing or the week prior as he contended. The government did not offer
evidence to the contrary.
      That leaves us with Clemons’s behavior the day of the revocation
hearing. Our deference to the district court is at its peak here, as we recognize
the district court was there, and we were not. Nevertheless, taking as true
everything the district court observed—odd, confused, incoherent behavior,
and mumbling, among other things—the evidence does not support the
conclusion that the cause of this behavior was marijuana. Other possibilities
are just as (if not more) likely to have caused his behavior. See United States
v. Moreland, 665 F.3d 137, 149 (5th Cir. 2011); United States v. Martinez, 686
F.2d 334, 346 (5th Cir. 1982) (reversing a criminal contempt conviction when
the evidence left open reasonable possibilities other than that defendants had
disobeyed a court order).
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                                 No. 16-60738
      Supporting those other explanations is evidence showing that Clemons
is not a normal communicator, “often mumbles,” and “doesn’t make a lot of eye
contact” under ordinary circumstances. And he was particularly “stressed out”
about court on the day in question. Further, when asked why he appeared
confused, Clemons immediately stated that he was “feeling anxious” and “had
anxiety problems.” In fact, he had his antianxiety medication on his person
and volunteered that he had taken it that morning.              The drug test
administered at the hearing indicated presence of a prescription medicine,
supporting Clemons’s statement that he had taken BuSpar. Uncontroverted
testimony indicated that nervousness and a “confusional state” were common
side effects of this medication, even when taken as prescribed. Importantly,
the sole witness at the contempt hearing refused to infer that Clemons’s
behavior was influenced by marijuana.
      Making all reasonable inferences from this evidence in favor of the
verdict of guilt, Clemons’s behavior is still insufficient to support the
conclusion that he was under the influence of marijuana. Neither the district
court nor the government has pointed to evidence that would cause a
reasonable person to conclude beyond a reasonable doubt that Clemons’s
behavior was caused by marijuana rather than other, immediately apparent
possible causes. For example, the record does not indicate that his eyes were
red, a common and visually-identifiable symptom of marijuana use. See Crider
v. United States, 885 F.2d 294, 295 (5th Cir. 1989) (alluding to red eyes as a
symptom of marijuana use). And despite his close proximity to Clemons during
the recess in the revocation hearing, the probation officer testified that he did
not smell marijuana on Clemons and noted that Clemons declined repeated
offers of food. See Kidd v. Norman, 651 F.3d 947, 950 (8th Cir. 2011) (noting
the connection between marijuana and feeling hungry); Webster v. Beary, 228


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                                 No. 16-60738
F. App’x 844, 846 (11th Cir. 2007) (alluding to the connection between
marijuana and “the munchies”).
      Most puzzlingly, after hearing all the evidence, the district court
recognized what we have just said: that it was “an open question as to when
the presence of marijuana was placed in [Clemons’s] system.” Then, in the
span of just one page of the transcript, the court concluded beyond a reasonable
doubt that Clemons came to court under the influence of marijuana. We do not
see evidence or reason justifying that leap.     Affirming the district court’s
verdict therefore would require us to “strain the trial evidence beyond the
limits even our justly deferential review . . . permits.” United States v. Davis,
735 F.3d 194, 201 (5th Cir. 2013).
                                      ***
      The judgment is VACATED.




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