     Case: 09-50185     Document: 00511032229          Page: 1    Date Filed: 02/22/2010




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

                                                  FILED
                                                                          February 22, 2010
                                     No. 09-50185
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee

v.

MORRIS ALLEN PARDUE

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:08-CR-200-1


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Morris Allen Pardue appeals his jury conviction for possession with intent
to distribute five grams or more of a mixture and substance containing a
detectable amount of cocaine base (crack cocaine) and for use of a minor to assist
in avoiding detection and apprehension in connection with the drug offense. See
21 U.S.C. § 841(a)(1) and (b)(1), 861(a)(2).
        Pardue argues that the district court erred when it omitted from the jury
instructions and the verdict form the “knowingly and intentionally” element of

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-50185    Document: 00511032229 Page: 2       Date Filed: 02/22/2010
                                 No. 09-50185

the use-of-a-minor offense. He contends that under the instructions given, the
Government was not required to prove all of the elements of the use-of-a-minor
offense and that acquittal is mandated. Although the court corrected the jury
instructions and verdict form to include the missing element and ordered the
jury to deliberate and vote using the corrected instructions and form, Pardue
argues that district court’s error confused the jury and that the error is not
harmless.
      Pardue did not object to the original instructions, and his objection to the
court’s proposed corrected instruction, “to preserve the error,” was not specific
and did not inform the court of the grounds for the objection, as is required by
Rule 30(d) of the Federal Rules of Criminal Procedure to preserve his objection.
Pardue did not object to either the original or the corrected verdict form.
Accordingly, review is for plain error only. See F ED. R. C RIM. P. 30(d), 52(b);
United States v. Betancourt, 586 F.3d 303, 305-06 (5th Cir. 2009). Pardue has
not shown that the corrected instructions and form were erroneous or misled the
jury, and he has not shown that any error in the original instructions and form,
which were corrected by the district court, affected his substantial rights.
Accordingly, he has not shown plain error. See Puckett v. United States, 129
S. Ct. 1423, 1429 (2009).
      Pardue also argues that the evidence at trial was insufficient to support
the “with intent to distribute” element of his conviction for possession with
intent to distribute five grams or more of crack cocaine. Because Pardue raised
this argument in his motions for a judgment of acquittal at the close of the
Government’s case and at the close of all of the evidence, he properly preserved
his sufficiency claim for appellate review. See United States v. Floyd, 343 F.3d
363, 370 (5th Cir. 2003); F ED. R. C RIM. P. 29(a).
      Pardue’s argument ignores the narcotics expert’s opinion testimony that
possession of six to seven grams of crack cocaine was inconsistent with personal
use and more consistent with being a mid-level dealer. The jury also heard the

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                                No. 09-50185

audio tape of and testimony about the police officer’s interview with Pardue
immediately after his arrest in which, among other stories, Pardue said that he,
the minor S.B., and two other men had pooled their money and Pardue bought
a bag of crack cocaine to split among them. This evidence that Pardue intended
to split or share with the other men supports the inference that he intended to
distribute or deliver the crack cocaine by transferring some of it to others. See
21 U.S.C. § 802(8), (11).   Although Pardue testified that eight grams was
consistent with his and others’ personal use and that he did not split the crack
cocaine with others, the jury was free to disbelieve this testimony. See United
States v. Casilla, 20 F.3d 600, 602 (5th Cir. 1994). We do not “review . . . the
weight of the evidence or . . . the credibility of the witnesses.” Floyd, 343 F.3d
at 370.   Viewing the evidence in the light most favorable to the verdict, a
reasonable jury could conclude that the Government proved beyond a reasonable
doubt Pardue’s intent to distribute the crack cocaine.
      AFFIRMED.




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