                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-10-2008

USA v. Johnson
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1423




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                                                               NOT PRECEDENTIAL


                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                 __________

                                     No. 07-1423
                                     __________


                          UNITED STATES OF AMERICA

                                           v.

                                 JACKIE JOHNSON,

                                                      Appellant
                                     __________

                    On Appeal from the United States District Court
                              for the District of Delaware
                           (D.C. Criminal No. 04-103-SLR)
                      District Judge: Honorable Sue L. Robinson
                                      __________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 on March 27, 2008

            Before: McKEE, RENDELL, and TASHIMA,* Circuit Judges.

                             (Filed: September 10, 2008)
                                     __________

                             OPINION OF THE COURT
                                   __________

TASHIMA, Circuit Judge.


   *
      Honorable A. Wallace Tashima, Senior Judge of the United States Court of Appeals
for the Ninth Circuit, sitting by designation.
       Jackie Johnson was convicted following a jury trial on one count of possession

with intent to distribute more than 50 grams of a mixture containing a detectable amount

of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii). Johnson

contends that the district court erred in declining to give the jury instruction he requested,

which stated that possession with intent to deliver more than 50 grams of cocaine was a

lesser included offense of possession with intent to deliver more than 50 grams of cocaine

base. We disagree with Johnson’s contention and will affirm. We have jurisdiction

pursuant to 28 U.S.C. § 1291.

       A confidential informant of the Delaware State Police made several phone calls to

Johnson and arranged to meet Johnson at a mall parking lot. Johnson was arrested in the

parking lot after a ziploc bag that contained what officers recognized as crack cocaine

was found in his vehicle. A field test of the substance at the scene showed a positive

result for cocaine. Subsequently, a Drug Enforcement Agency (“DEA”) chemist

performed further tests on the substance and concluded that it was crack cocaine base.

       Johnson was indicted on one count of possession with intent to distribute more

than 50 grams of a mixture containing a detectable amount of cocaine base. The

indictment alleged that the substance was “in the crack form of cocaine base and weighed

more than 150 grams.”

       At trial, defense counsel argued that there was evidence in the record that the drugs

were cocaine, not crack, relying on the preliminary field test conducted at the scene of the

arrest. He requested a jury instruction on what he called either the alternative offense or
the lesser included offense of possession with intent to distribute cocaine, rather than

cocaine base. The government initially did not object, and the court stated that it would

probably give the instruction. Subsequently, however, the government raised the concern

that Johnson had not been charged with possession of cocaine. Further, it pointed out that

the field test indicating that the substance was cocaine was a preliminary test, which the

government argued was not a sufficient basis for conviction. After further discussion, the

District Court declined to give the instruction.

       The jury found Johnson guilty of possession with intent to distribute more than 50

grams of a mixture and substance containing a detectable amount of cocaine base.

Johnson filed a motion for judgment of acquittal and for new trial, in which he raised the

issue of the court’s failure to give the requested lesser included offense instruction. The

District Court denied the motion, explaining that the field test was a preliminary tool to

determine the presence of narcotics, rather than conclusive evidence that the drugs were

in fact cocaine, rather than cocaine base. It then sentenced Johnson to 240 months’

imprisonment. Johnson timely appealed.

       We review the refusal to give a particular jury instruction for abuse of discretion,

although we exercise plenary review over the question of whether the jury instructions

state the proper legal standard. United States v. Leahy, 445 F.3d 634, 642 (3d Cir. 2006).

We will “reverse ‘a district court’s denial to charge a specific jury instruction only when

the requested instruction was correct, not substantially covered by the instructions given,

and was so consequential that the refusal to give the instruction was prejudicial to the
defendant.’” Id. at 651 (quoting United States v. Phillips, 959 F.2d 1187, 1191 (3d

Cir.1992)).

       Johnson relies on United States v. Lacy, 446 F.3d 448 (3d Cir.), cert. denied, 127

S. Ct. 542 (2006), and United States v. Jackson, 443 F.3d 293 (3d Cir. 2006), to argue

that possession of cocaine is a lesser included offense of possession of cocaine base. In

Lacy, the defendant was charged with possession with intent to distribute five grams or

more of a substance containing a detectable amount of cocaine base, in violation of 21

U.S.C. § 841(a)(1) and (b). The jury acquitted him of that offense, but convicted him of

simple possession of more than five grams of cocaine base, in violation of 21 U.S.C. §

844, and possession with intent to distribute an unspecified amount of cocaine base, in

violation of 21 U.S.C. § 841(a)(1).

       On appeal, the defendant argued that simple possession of five or more grams of

cocaine base was not a lesser included offense of possession with intent to distribute five

or more grams of cocaine base. We disagreed, reasoning that, after Apprendi v. New

Jersey, 530 U.S. 466 (2000), “drug identity and quantity should be considered the

functional equivalents of elements of a simple possession offense when they increase a

defendant’s maximum statutory sentence exposure.” Lacy, 446 F.3d at 453. Thus, the

elements of the charged offense were “(1) knowing or intentional (2) possession (3) with

intent to distribute (4) five grams or more (5) of a mixture or substance containing

cocaine base.” Id. at 454. The elements of the simple possession offense of which he

was convicted were “(1) knowing or intentional (2) possession (3) of more than five
grams (4) of a mixture or substance containing cocaine base.” Id. It was clear that “the

simple possession offense of which Lacy was convicted is a lesser included offense of the

charged possession with intent to distribute offense. The only difference between the two

offenses is that the section 841 offense requires proof of intent to distribute the drugs.”

Id.

       The defendant in Jackson was charged, as pertinent here, with possession with

intent to distribute more than five grams of cocaine base, in violation of 21 U.S.C.

§ 841(a)(1), and possession with intent to distribute more than five grams of cocaine base

within 1,000 feet of a school, in violation of 21 U.S.C. § 860(a). He was convicted of

both counts. On appeal, he contended that the first charge was a lesser included offense

of the second, and the government conceded that he was correct. We agreed, stating that,

in order to have found him guilty of § 860(a), the court “must have first found him guilty

of § 841(a)(1),” and that a “conviction under § 860(a) only requires a finding of one

additional element, the 1,000-foot proximity to a school.” Jackson, 443 F.3d at 301;

accord United States v. Jones, 489 F.3d 243, 254 (6th Cir. 2007) (stating that, “[b]y the

explicit terms of § 860, . . . § 841(a)(1) is a lesser-included offense”).

       Neither Jackson nor Lacy supports Johnson’s argument. It is self-evident by the

very language of § 860 that § 841(a)(1) is a lesser included offense, and every circuit to

have addressed the issue has so held. See Jones, 489 F.3d at 254 (citing cases).

Similarly, it is commonly held and self-evident that simple possession of cocaine base is a

lesser included offense of possession with intent to distribute cocaine base. See, e.g.,
United States v. Mays, 466 F.3d 335, 342 (5th Cir. 2006) (“Possession of a controlled

substance is undeniably a lesser-included offense of possession with intent to

distribute.”), cert. denied, 127 S. Ct. 1313 (2007); United States v. Puckett, 405 F.3d 589,

600 (7th Cir. 2005) (stating that it is clear that simple possession is a lesser included

offense of possession with intent to distribute).

       The question of whether possession with intent to distribute cocaine is a lesser

included offense of possession with intent to distribute cocaine base, however, is not

clearly controlled by our precedent. We note that there is out-of-circuit authority that

distribution of powder cocaine is a lesser included offense of distribution of cocaine base.

See United States v. Lacey, 511 F.3d 212, 215 (D.C. Cir. 2008). Given the record in this

case, however, we need not resolve that issue.

       One reason why the District Court declined to give Johnson’s requested jury

instruction was that it concluded that there was not a sufficient evidentiary basis to

support giving of the charge. The DEA chemist testified unequivocally that the drugs

were “crack cocaine base,” and the arresting officers testified that the drugs looked like

crack cocaine. The court thus concluded that there was insufficient evidence to warrant

an instruction on possession with intent to distribute cocaine. The district court’s

conclusion was not an abuse of discretion.

       The only evidence on which Johnson based his request for the lesser included

offense instruction was the testimony that the preliminary field test showed “a positive

result for cocaine.” There was no testimony, however, that the field test ruled out that the
drugs were cocaine base. Moreover, cross-examination of the arresting officer revealed

that a field test is only a preliminary test and that the substance is eventually sent to a

laboratory for a definitive test. This was corroborated by the testimony of the DEA

chemist that a field test is a preliminary test, and that the definitive test is conducted in the

laboratory by a chemist.

       Thus, the record supports the District Court’s ruling that there was insufficient

evidence to warrant an instruction on possession with intent to distribute cocaine. “A jury

instruction must contain a lesser included offense only if the evidence adduced at trial

could support a guilty verdict on either charge.” Gov’t of Virgin Islands v. Knight, 989

F.2d 619, 632 (3d Cir. 1993). It was clear that the field test was only a preliminary test,

and there was no testimony that the field test was negative for cocaine base, only that it

was positive for cocaine. The DEA chemist testified that the definitive tests he conducted

indicated that the substance was crack cocaine. Further, one of the arresting officers

testified that he knew the substance was crack cocaine, based on its appearance. The

District Court did not abuse its discretion in concluding that there was insufficient

evidence to warrant giving an instruction on possession with intent to distribute cocaine.

Cf. United States v. Harris, 313 F.3d 1228, 1241 (10th Cir. 2002) (holding that the district

court did not abuse its discretion in denying the request for a jury instruction on the lesser

included offense of simple possession where the quantity of cocaine base and the

defendant’s own testimony precluded the finding that a rational jury could have acquitted

the defendant on the charge of possession with intent to distribute).
For the foregoing reasons, we will AFFIRM the judgment of conviction.
