                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                                                  In the                                   July 9, 2007
                       United States Court of Appeals                                Charles R. Fulbruge III
                                      for the Fifth Circuit                                  Clerk
                                            _______________

                                              m 06-41179
                                            Summary Calendar
                                            _______________




                                   UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                                 VERSUS

                                           GREG STODDARD,

                                                               Defendant-Appellant.



                               _________________________

                             Appeal from the United States District Court
                                  for the Eastern District of Texas
                                          m 1:05-CR-151
                          ______________________________



Before SMITH, WIENER, and OWEN,                           Greg Stoddard was convicted by a jury of
  Circuit Judges.                                      possession of a firearm in furtherance of a
                                                       drug trafficking crime and possession of a con-
JERRY E. SMITH, Circuit Judge:*                        trolled substance with intent to distribute. He

   *                                                       *
    Pursuant to 5TH CIR. R. 47.5, the court has de-        (...continued)
termined that this opinion should not be published     and is not precedent except under the limited
                                     (continued...)    circumstances set forth in 5TH CIR. R. 47.5.4.
appeals his conviction, arguing that there was         The sum of $4,856 was found on his person,
insufficient evidence to sustain the verdict and       packaged in similar hundred-dollar increments.
that the identification procedures used by the         He was brought to the scene of the accident
police were unduly suggestive.1 Finding no             but disclaimed knowledge of the truck or the
error, we affirm.                                      items inscribed with his name.

                       I.                                  One of the witnesses encountered Stoddard
    About 9:30 in the evening, a truck left the        at the convenience store before the arrest and
side of the road and careened into a tree. Two         returned to identify him at the scene. Another
witnesses approached the truck and observed            witness encountered Stoddard and an officer
its sole occupant emerge in a daze. Both               later that night at the hospital and positively
witnesses inquired as to the driver’s health,          identified Stoddard a week later from a single-
and one dialed 911. By the time the police             photo display.
arrived, the driver had wandered away.
                                                          Stoddard pleaded not guilty to a three-
   Inside the truck, police found a loaded .38         count indictment and was convicted of one
caliber pistol in the glove box, a TEC-9 semi-         count of firearm possession and one count of
automatic pistol in the floorboard, a large            possession of methamphetamine with intent to
number of plastic bags, a scale, a grinding ma-        distribute, a third count having been dismissed
chine, and, in the center console, a large             per government motion. Stoddard appeals,
amount of crystal methamphetamine, and                 claiming that the evidence was insufficient as
$1,580 in currency divided up into one-hun-            a matter of law on both counts and that the
dred-dollar increments. Police also found a            witness identifications should have been sup-
shirt and a pill bottle with Stoddard’s name on        pressed because the police procedures were
them and two notebooks bearing his name and            unduly suggestive.
address.
                                                                              II.
   Both witnesses gave an identification of the            We first consider Stoddard’s evidentiary
driver as a white male in his mid-forties with         objection, because the witness identifications
shoulder-length salt and pepper hair, wearing          were a key part of the government’s case in
a green tee shirt and blue jeans. Stoddard was         chief. The district court conducted an identifi-
arrested shortly thereafter at a nearby conven-        cation hearing outside the presence of the jury
ience store wearing a green tee shirt and jeans.       and ruled that the witnesses could identify
                                                       Stoddard in their testimony. “When reviewing
                                                       a ruling from a pretrial suppression hearing,
   1                                                   this Court must give credence to the credibility
     Stoddard asserts that the court erred by class-
ifying the methamphetamine he was convicted of         choices and findings of fact of the district
possessing as “ice.” The sentencing guidelines de-     court unless clearly erroneous.” United States
fine “ice” as “d-methamphetamine hydrochloride of      v. Shaw, 894 F.2d 689, 691 (5th Cir. 1990)
at least 80% purity,” see U.S.S.G. § 2D1.1; the        (citations omitted). Admission of evidence is
jury, on the special verdict form, found that          generally reviewed for abuse of discretion.
Stoddard possessed “d-methamphetamine hcl” of at       United States v. Rogers, 126 F.3d 655, 657
least 80% purity. “Hcl” is a common chemical           (5th Cir. 1997).
abbreviation for hydrochloride, and the jury heard
testimony about the abbreviation. Stoddard’s ar-          The Due Process Clause forbids the admis-
gument is without merit.
sion of unreliable identification testimony.                               III.
Monson v. Brathwaiter, 432 U.S. 98, 99, 114             Where, as here, the defendant moved for
(1977). The admissibility of identification evi-    judgment of acquittal at the close of the evi-
dence is determined by (1) whether the              dence, we decide whether the evidence is suf-
identification procedure was “unduly sugges-        ficient by “viewing the evidence and the in-
tive” and (2) whether the procedure posed “a        ferences that may be drawn from it in the light
very substantial likelihood of irreparable mis-     most favorable to the verdict” and determining
identification.” Rogers, 126 F.3d at 658. On-       whether “a rational jury could have found the
ly if both questions are answered affirmatively     essential elements of the offenses beyond a
do we require suppression. Id. We agree with        reasonable doubt.” United States v. Pruneda-
the district court that even if the show-up and     Gonzalez, 953 F.2d 190, 193 (5th Cir. 1992).
the single-photo display were unduly sugges-        The jury has the sole responsibility for weigh-
tive, the procedures did not pose a “very sub-      ing the evidence and making credibility deter-
stantial likelihood of irreparable misidentifica-   minations. United States v. Jaramillo, 42 F.3d
tion.”                                              920, 923 (5th Cir.1995). “It is not necessary
                                                    that the evidence exclude every rational hy-
    Courts consider five factors to determine       pothesis of innocence or be whollyinconsistent
the likelihood of irreparable misidentification:    with every conclusion except guilt, provided a
(1) the witness’s opportunity to view the sus-      reasonable trier of fact could find the evidence
pect at the time of the offense, (2) the wit-       establishes guilt beyond a reasonable doubt.”
ness’s degree of attention, (3) the accuracy of     Pruneda-Gonzalez, 953 F.2d at 193.
the witness’s prior description of the actor,       “However, we must reverse a conviction if the
(4) the witness’s level of certainty at the con-    evidence construed in favor of the verdict
frontation, and (5) the length of time between      gives equal or nearly equal circumstantial sup-
the crime and the confrontation. Neal v. Big-       port to a theory of guilt and a theory of inno-
gers, 409 U.S. 188, 199 (1972). In this case,       cence of the crime charged.”2
all five factors favor the identification’s reli-
ability.                                                Stoddard argues that the evidence is insuf-
                                                    ficient to demonstrate that he possessed the
    Although the accident happened at night,        methamphetamine. The prosecution relied on
there was no testimony that it was too dark to      a constructive possession theory, arguing that
see and the light was sufficient for both wit-      Stoddard maintained dominion or control over
nesses to provide descriptions of the suspect.      the vehicle in which the contraband was con-
Both witnesses spoke with the suspect direct-       cealed. See United States v. Wright, 24 F.3d
ly, immediately after witnessing a significant      732, 734 (5th Cir. 1994). The government
crash. Their prior descriptions proved accu-        brought forth evidence that Stoddard had bor-
rate. Neither witness suggested that they were      rowed the car and was its sole occupant when
uncertain of the identification. One witness        it hit a tree carrying large amounts of metham-
identified Stoddard the night of the accident,      phetamine. He fled the scene and later dis-
after seeing him twice; the other identified him
only a week later, again having seen him twice.
The district court did not abuse its discretion        2
                                                         Jaramillo, 42 F.3d at 923; see also United
by admitting the identifications.                   States v. Gonzales, 436 F.3d 560, 571 (5th Cir.
                                                    2006), cert. denied, 126 S. Ct. 2045 (2006), and
                                                    cert. denied, 126 S. Ct. 2362 (2006), and cert.
                                                    denied, 126 S. Ct. 2363 (2006).
claimed any knowledge about the truck, de-             The evidence demonstrates that Stoddard
spite the presence of items in it bearing his      engaged in sales from his vehicle (he had no
name.                                              local address), and a loaded semi-automatic
                                                   pistol was found late at night under the floor-
   We have rejected a constructive possession      board of his car in close proximity to drugs,
theory based on control of a vehicle where a       cash, and distribution paraphernalia. A ration-
passenger in the vehicle may have actually pos-    al fact-finder could find beyond a reasonable
sessed the contraband. Id. at 735. Here, there     doubt that Stoddard possessed the gun in fur-
was no evidence of joint occupation on the         therance of a drug trafficking crime.
night in question, and Stoddard’s flight and
later disavowal of the vehicle are consistent         The judgment is AFFIRMED.
with knowledge of the car’s illegal contents.
The evidence was sufficient for a reasonable
fact-finder to find beyond a reasonable doubt
that Stoddard possessed the drugs.

   Stoddard contends that the evidence is in-
sufficient to demonstrate that he possessed the
drugs with intent to distribute. He was arrest-
ed in possession of a large quantity of drugs,
valued at nearly twenty thousand dollars, and
large amounts of currency packaged in small
amounts. In close proximity was drug distri-
bution paraphernalia, including a scale and a
grinder. The government produced sufficient
evidence to demonstrate intent to distribute.
See, e.g., United States v. Jackson, 55 F.3d
1219, 1226 (6th Cir. 1995).

    Stoddard argues that the evidence is insuf-
ficient to demonstrate that he possessed a fire-
arm in furtherance of a drug trafficking crime.
“The mere presence of a firearm at the scene
of drug activity does not alone amount to pos-
session in furtherance of that activity.” United
States v. Charles, 469 F.3d 402, 406 (5th Cir.
2006), cert. denied, 127 S. Ct. 1505 (2007).
In assessing whether a firearm is possessed in
furtherance of drug activity, relevant factors
include, inter alia, the type of drug activity,
the accessibility of the firearm, the type of
weapon, whether the weapon is loaded, the
proximity of the weapon to drugs or drug
profits, and the time and circumstances in
which the gun is found. Id.
