11-5457-cr
United States v. Eldridge
                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 20th day of June, two thousand thirteen.

PRESENT: REENA RAGGI,
         SUSAN L. CARNEY,
                    Circuit Judges,
         JED S. RAKOFF,
                    District Judge.*

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UNITED STATES OF AMERICA,
                                 Appellee,

                            v.                                           No. 11-5457-cr

THAMUD ELDRIDGE, a/k/a Robert Muhammad,
                                 Defendant-Appellant.
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APPEARING FOR APPELLANT:                          JEREMY D. SCHWARTZ, The Eoannou Law
                                                  Firm, Buffalo, New York.

APPEARING FOR APPELLEE:                           JOSEPH J. KARASZEWSKI, Assistant United
                                                  States Attorney, for William J. Hochul, Jr., United
                                                  States Attorney, Western District of New York,
                                                  Buffalo, New York.


           *
      Judge Jed S. Rakoff, of the United States District Court for the Southern District of
New York, sitting by designation.
       Appeal from a judgment of the United States District Court for the Western District

of New York (Richard J. Arcara, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on September 21, 2009, is AFFIRMED.

       Defendant Thamud Eldridge stands convicted after a jury trial on charges of being a

felon in possession of a firearm, see 18 U.S.C. § 922(g)(1), possessing crack cocaine with

intent to distribute, see 21 U.S.C. § 841(a)(1), and unlawfully possessing marijuana, see id.

§ 844(a). On this appeal, Eldridge challenges the second count of conviction, arguing that

(1) Buffalo Police Detective William Donovan was erroneously allowed to testify that the

2.5 grams of crack recovered from Eldridge was consistent with dealing rather than personal

use, and (2) the evidence was insufficient to support a guilty verdict. We review rulings on

expert testimony for abuse of discretion and will vacate a conviction only for manifest and

prejudicial error. See United States v. Barrow, 400 F.3d 109, 123 (2d Cir. 2005). While we

review a sufficiency challenge de novo, we are obliged to view the evidence in the light most

favorable to the verdict and to uphold the conviction as long as “any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” Jackson

v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). We assume the parties’

familiarity with the facts and record of prior proceedings, which we reference only as

necessary to explain our decision to affirm.




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1.     Expert Testimony

       Eldridge claims that Detective Donovan’s testimony that 2.5 grams of crack was more

consistent with dealing than with personal use impermissibly opined on Eldridge’s mental

state, “an element of the crime charged.” Fed. R. Evid. 704(b). Moreover, Eldridge submits

that the testimony should have been excluded as not helpful to the jury. See id. 702(a).

Neither argument has merit.

       Expert testimony that a quantity of drugs is generally more consistent with distribution

than with personal use, if credited, may allow the jury to infer a defendant’s intent, but that

testimony does not itself opine on the particular defendant’s intent. Thus, such testimony is

normally admissible. See United States v. Lopez, 547 F.3d 364, 373 (2d Cir. 2008)

(upholding against Rule 704(b) challenge expert testimony “that, based on his experience as

a drug investigator, the drugs and paraphernalia found in [defendant]’s car were more

consistent with distribution than personal use”).

       Nor is there reason to conclude that Donovan’s testimony was insufficiently helpful

to the jury to justify admission. See generally United States v. Tapia-Ortiz, 23 F.3d 738, 741

(2d Cir. 1994) (“Testimony about the weight, purity, dosages, and prices of cocaine clearly

relates to knowledge beyond the ken of the average juror.”). In urging otherwise, Eldridge

invokes United States v. Boissoneault, 926 F.2d 230 (2d Cir. 1991). There, however, an

expert witness testified that the totality of physical evidence in the case “suggested ‘street

level distribution of cocaine.’” Id. at 233 (proposing, without deciding, that testimony did

not meet Rule 702(a)’s helpfulness criterion because jury could draw own conclusion as to

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defendant’s involvement in cocaine distribution). Here, Detective Donovan offered no such

overarching, case-specific opinion; he simply provided the jury with the benefit of his 21

years’ experience about the quantity of drugs possessed by traffickers versus users. Thus,

he testified that, in his experience, individuals arrested for purchasing crack cocaine for

personal use routinely possess no more than “two to three bags,” each containing “one-tenth

of a gram” or less, Trial Tr. 106, J.A. 885; see also id. at 112, J.A. 891 (testifying that, on

rare occasion, user will purchase up to 10 bags at once), information plainly beyond the ken

of the average juror. He expressed no opinion as to Eldridge’s own intent or involvement

in the distribution of crack cocaine. See United States v. Boissoneault, 926 F.2d at 233

(endorsing expert testimony that “simply explain[s] the likely significance of properly

admitted physical evidence”).1

       Accordingly, we identify no abuse of discretion in the admission of Detective

Donovan’s expert opinion testimony.

2.     Sufficiency of Evidence

       Eldridge argues that, irrespective of evidentiary error, the record does not support his

conviction on Count Two. Specifically, he maintains that no reasonable jury could have

concluded beyond a reasonable doubt that the 2.5 grams of crack cocaine in question were

intended for distribution rather than personal use. We are not persuaded.


       1
        Insofar as a court must protect against the “assumption that the [expert] witness has
knowledge of the defendant’s activities that goes beyond the evidence at trial,” United States
v. Barrow, 400 F.3d at 124 (internal quotation marks omitted), no rational juror here could
so assume in light of Donovan’s testimony that he was not involved “at all” in the
investigation or arrest of Eldridge, Trial Tr. 11, J.A. 890.

                                              4
       “[P]ossession of a small quantity of drugs standing alone is insufficient to prove an

intent to distribute,” but because “the statute specifies no minimum amount, any amount of

drugs, however small, will support a conviction when there is additional evidence of [such]

intent.” United States v. Martinez, 54 F.3d 1040, 1043 (2d Cir. 1995). In arguing that

additional evidence of intent is missing here, Eldridge points to the lack of drug-dealing

paraphernalia found on his person, along with his possession of cigars that, he asserts, could

be used to make crack-laced marjiuana cigarettes for his own consumption. Eldridge was,

of course, free to make these arguments to the jury, which apparently rejected them. See

United States v. Jackson, 335 F.3d 170, 180 (2d Cir. 2003) (“[I]t is the task of the jury, not

the court, to choose among competing inferences that can be drawn from the evidence.”).

In fact, Detective Donovan testified on redirect examination that he had “never,” in his 21

years’ experience, heard of 2.5 grams of crack cocaine being used in a marijuana cigarette.

Trial Tr. 123, J.A. 902.

       More to the point, Donovan also testified that firearms—such as the one supporting

Eldridge’s felon-in-possession conviction, not challenged on appeal, see 18 U.S.C.

§ 922(g)(1)—are common tools of drug dealers looking to prevent theft of money and

contraband. See United States v. Boissoneault, 926 F.2d at 234 (observing that defendant’s

ownership of “gun or other weapon” would support “inference that he was engaged in the

dangerous business of drug trafficking”); accord United States v. Wallace, 532 F.3d 126, 131

(2d Cir. 2008). While Eldridge tried to mitigate his possession by characterizing it as fleeting

and highlighting that the firearm was inoperable unless manipulated, a reasonable jury was

                                               5
nevertheless entitled to consider this possession, together with Donovan’s testimony

regarding drug quantity, to draw an inference of intent to distribute. Notably, the weapon

was recovered from a second-story apartment in which Eldridge was arrested following a

scuffle with police, after he had hurled himself through a glass window at the conclusion of

a high speed foot chase. The jury was free to conclude from these circumstances that such

a dramatic physical encounter was not consistent with possession of crack for personal use,

particularly where the quantity possessed was 25 times the normal single dosage.

       Accordingly, we reject Eldridge’s challenge to the sufficiency of the evidence

supporting his conviction.

       The judgment of conviction is AFFIRMED.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




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