                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                            July 14, 2009
                             No. 08-16088                 THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                   D. C. Docket No. 08-80024-CR-DMM

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

RODERRICK VANN,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                              (July 14, 2009)

Before BLACK, HULL and FAY, Circuit Judges.

PER CURIAM:
      After a jury trial, Roderrick Vann appeals his convictions for two counts of

possession with intent to distribute at least five grams of crack cocaine found in his

apartment, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) (Counts 1 and 2),

and one count of possession of a firearm and ammunition by a convicted felon, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Count 3). After review, we affirm.

                                I. BACKGROUND

A.    Arrest and Search

      On April 24, 2007, two Palm Beach County Sheriff’s deputies, Officer

Lonney Moral and Officer Michael Murray, submitted an application for a search

warrant and affidavit to a Palm Beach County Circuit Judge. In support of the

application, the officers submitted an affidavit, which they both signed. The

officers sought to search the premises and curtilage of apartment 5 at 605 North

Federal Highway in Lake Worth, Florida.

      According to the officers’ affidavit, a black male calling himself “Hot”

resided at the apartment. The officers averred that, on April 21, 2007, they

personally observed Hot sell crack cocaine to a confidential informant (“CI”)

during two separate controlled buys conducted over a one-hour period.

Specifically, the officers averred that, while each CI was under constant

surveillance, Hot exited apartment 5, approached the CI and exchanged $20 for .2



                                           2
grams of crack cocaine. After each transaction, the officers recovered the

purchased crack cocaine from the CI and confirmed the identity and weight of the

drug through field testing. In addition, during the one-hour period, Officer Moral

observed three “hand-to-hand” transactions between Hot and unknown individuals.

      On April 24, 2007, the judge issued the search warrant. On May 3, after

observing Defendant Vann leave apartment 5 and ride as a passenger in a car

driven by a woman, law enforcement officers conducted a traffic stop. In a search

incident to Vann’s arrest, Officer Moral found a ten-dollar bill containing a piece

of crack in the car’s ashtray. After Vann was given a Miranda warning, Vann said

that the crack cocaine found in the car belonged to him.

      Vann was taken by patrol car to apartment 5, where officers executed the

search warrant. During the search, officers found a loaded handgun and two bags

of crack cocaine, one in a bedroom dresser drawer along with a razor blade and a

lighter and the other in the pocket of a jacket hanging in the bedroom closet. The

two bags found in the apartment contained 27.9 and 12.7 grams of crack cocaine.

      Later, during a recorded interview at the police station, Vann told Officer

Moral that he sold crack cocaine because he had no other way to earn an income

and that he traded crack cocaine for the handgun. Vann also indicated that he was




                                          3
the only person living in apartment 5, although his girlfriend dropped by

occasionally.

B.    Indictment

      Vann was indicted on these four counts: (1) possession with intent to

distribute at least five grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1)

and (b)(1)(B) (Count 1); (2) possession with intent to distribute at least five grams

of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) (Count 2); (3)

possession of a firearm and ammunition by a person previously convicted of a

crime punishable by more than one year of imprisonment, in violation of 18 U.S.C.

§§ 922(g)(1) and 924(e) (Count 3); and (4) possession of a firearm and ammunition

during and in relation to a drug-trafficking crime–that is, the offenses charged in

Counts 1 and 2–in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 4), all occurring

on or about May 3, 2007. Vann was not indicted for the controlled buys conducted

on April 21, 2007 and described in the officers’ search warrant affidavit.

C.    Motion to Suppress

      Prior to trial, Vann filed a motion asking the district court to conduct an in

camera hearing to determine whether the testimony of the government’s CIs might

assist Vann at a suppression hearing and at trial. Vann argued that the search

warrant affiants misidentified Vann as the individual who sold the CIs crack



                                           4
cocaine on April 21, 2007 and that the CIs might support this claim. Vann also

filed motions in limine seeking to exclude: (1) evidence seized from his apartment

because the search warrant was not supported by probable cause; and (2) evidence

of the April 21, 2007 controlled buys. After a suppression hearing, the district

court concluded that Vann had not met the threshold requirement for a Franks

hearing and denied Vann’s motions to suppress and to disclose the identities of the

CIs. In response, Vann acknowledged that his motion in limine under Rule 404(b)

had been resolved because the government stated that it did not intend to introduce

evidence of the April 21 transactions.

D. Trial and Sentencing

      Just before trial, Vann objected to the introduction of evidence of the crack

cocaine found in his car because it was not charged in the indictment. He also

objected to any mention of the search warrant because the jury would construe its

existence as a “judicial stamp of approval.” The district court overruled Vann’s

objection to the introduction of the crack cocaine found in the car, concluding that

this evidence was “part of the offense or at least inextricably intertwined” with it.

The district court sustained Vann’s objection to the admission of the search

warrant, but overruled the objection to mentioning the warrant.




                                           5
      At trial, the government presented testimony from Officer Moral and two

other law enforcement officers as to the controlled buys, Vann’s arrest, the search

of apartment 5 and Vann’s subsequent confession. Several officers, including

Officer Moral, testified that the amount of drugs found in Vann’s apartment

indicated that he was a street-level dealer and, as such, the officers would not have

expected to find sales records, such as a ledger, or scales during the search. Officer

Moral also testified that, although they found a lighter, they found no other drug

paraphernalia commonly used by crack cocaine users, such as a pipe.

      The government presented testimony of Jeanette Marie Perr, a forensic

chemist with the Drug Enforcement Administration. Perr stated that the two

packages of crack cocaine found in Vann’s apartment weighed 12.3 grams and

26.1 grams.

      Over Vann’s objection, the government also called as an expert witness

Detective Dwayne Fernendes of the Delray Beach Police Department, an

experienced narcotics investigator who had posed undercover as a drug distributor

and drug purchaser. Fernendes testified, inter alia, that: (1) a gram of crack

cocaine could equal between 7 and 10 doses, at $10 to $20 per dose; (2) the crack

cocaine rocks found in Vann’s apartment were in the size and shape of those sold

by street-level dealers for $10 to $20 per rock; (3) forty grams of crack would



                                           6
equal 400 doses; and (4) the amounts of crack cocaine found in Vann’s

apartment–27.8 grams and 12.7 grams–were “absolutely” distribution amounts.

      In addition, Detective Fernendes stated that he had never seen a crack

cocaine user with a large amount of crack cocaine. Typically a user would have at

most seven to ten crack cocaine rocks. And, a user would need a pipe in addition

to a lighter to smoke the crack. Fernendes explained that large rocks of crack

cocaine are cut up with razor blades, and that street-level dealers do not typically

use scales to measure doses. Fernendes also had not seen street-level drug dealers

who kept ledgers because street-level drug dealers typically receive cash at the

time they make their deals, rather than front drugs to buyers.

      After the government rested, Vann moved for a judgment of acquittal on

Counts 1 and 2 on double jeopardy grounds. The district court denied the motion.

Vann also requested a jury instruction on the lesser-included offense of simple

possession for Counts 1 and 2 and that the verdict form include this offense. The

district court postponed ruling on this request while Vann presented his defense.

      Vann called Amber Armstrong, his girlfriend from 2004 to 2007.

Armstrong testified that she was the driver of the car during the May 3, 2007 traffic

stop. According to Armstrong, she moved out of Vann’s apartment a year and a




                                           7
half before his arrest when she learned Vann was using drugs. At that time,

Armstrong saw a small amount of drugs in the apartment, but not a handgun.

      After the defense rested, the district court denied Vann’s request that the jury

verdict form include the lesser-included offense of simple possession. The district

court also denied Vann’s renewed motion for a judgment of acquittal. The district

court instructed the jury that it could find Vann guilty of Counts 1 and 2 if it found

beyond a reasonable doubt that Vann: (1) knowingly possessed a controlled

substance; and (2) possessed the controlled substance with the intent to distribute

it. The district court explained that the second element “simply means to possess

with intent to deliver or transfer possession of a controlled substance to another

person with or without any financial interest in the transaction.” The jury found

Vann guilty on the drug offenses in Counts 1 and 2 and the felon in possession of a

firearm offense in Count 3, but acquitted him of Count 4, the offense of possessing

a firearm during a drug offense. The district court imposed a 240-month sentence.

                                 II. DISCUSSION

A.    Franks Hearing

      Vann argues that he was entitled to a Franks hearing before the district court

ruled on his motion to suppress. Vann claims the search warrant affidavit’s

statements linking the occupant of apartment 5 with the controlled buys were false.



                                           8
       Under Franks, when a defendant “makes a substantial preliminary showing

that a false statement knowingly and intentionally, or with reckless disregard for

the truth, was included by the affiant in the warrant affidavit, and if the allegedly

false statement is necessary to the finding of probable cause, the Fourth

Amendment requires that a hearing be held at the defendant’s request.” Franks v.

Delaware, 438 U.S. 154, 155-56, 98 S. Ct. 2674, 2676 (1978). To be entitled to a

hearing, the defendant must “point out specifically the portion of the warrant

affidavit that is claimed to be false” and provide “a statement of supporting

reasons.” Id. at 171, 98 S. Ct. at 2684. The defendant’s attack “must be more than

conclusory” and the allegations of a deliberate falsehood or of reckless disregard

for the truth “must be accompanied by an offer of proof.” Id. Furthermore, the

alleged deliberate falsity or reckless disregard must be “only that of the affiant, not

of any nongovernmental informant.” Id.1

       Here, Vann failed to make a substantial preliminary showing that the

officers deliberately or recklessly included false statements in their affidavit. We

note that, although Vann characterizes the allegedly false statements as



       1
        Although generally we review a district court’s denial of a request for an evidentiary
hearing for an abuse of discretion, we have not articulated the precise standard of review for the
denial of a request for a Franks hearing. See United States v. Arbolaez, 450 F.3d 1283, 1293
(11th Cir. 2003). We need not resolve this issue, however, because even under a more exacting
de novo standard of review, we find no error.

                                                 9
misidentification, the officers’ affidavit did not identify Vann as the individual

calling himself “Hot” and selling the crack cocaine outside the apartment. The

affidavit simply stated that a person named Hot exited apartment 5 and sold crack

cocaine to the CIs. Further, Vann does not seem to dispute that the controlled buys

occurred outside apartment 5, only that he was the man seen by the officers selling

the crack cocaine to their CIs.

      Regardless, Vann failed to offer any proof to support his claim that the

statements linking an “occupant of apartment # 5” to the controlled buys were

false. Vann argued that he could not offer proof because the district court refused

to order the disclosure of the CIs’ identities. However, this nondisclosure did not

prevent Vann from submitting his own affidavit stating that he was not the person

who sold the crack cocaine to the CIs and that no one else had access to his

apartment on April 21 or from making such a proffer at the suppression hearing.

Moreover, Vann did not identify any inconsistencies or other circumstances that

might cast doubt on the officers’ statements that the drug dealer came from

apartment 5, particularly in light of Vann’s confession to dealing crack cocaine and

the evidence that he was the apartment’s only occupant. Cf. United States v. Kirk,

781 F.2d 1498, 1502-03 (11th Cir. 1986) (upholding district court’s finding of

reckless disregard in the misidentification of defendant and a co-conspirator as two



                                          10
known drug traffickers where their physical descriptions did not match those of

known drug traffickers and officers observed defendant for forty minutes from a

distance of only fifteen feet).

      Given that Vann’s attack on the veracity of the affiants’ statements was

conclusory and unsupported by an offer of proof, the district court did not err in

denying Vann’s request for a Franks hearing.

B.    CIs’ Identities

      Vann argues that the district court erred in denying his motion to disclose the

names of the CIs involved in the controlled buys described in the warrant affidavit.

      The government has a privilege to withhold the identity of law enforcement

informants. Roviaro v. United States, 353 U.S. 53, 59, 77 S. Ct. 623, 627 (1957).

“The purpose of the privilege is the furtherance and protection of the public

interest in effective law enforcement.” Id. However, the privilege is limited.

      Where the disclosure of an informer’s identity, or of the contents of
      his communication, is relevant and helpful to the defense of an
      accused, or is essential to a fair determination of a cause, the privilege
      must give way. In these situations the trial court may require
      disclosure and, if the Government withholds the information, dismiss
      the action. Most of the federal cases involving this limitation on the
      scope of the informer’s privilege have arisen where the legality of a
      search without a warrant is in issue and the communications of an
      informer are claimed to establish probable cause. In these cases the
      Government has been required to disclose the identity of the
      informant unless there was sufficient evidence apart from his
      confidential communication.

                                          11
Id. at 60-61, 77 S. Ct. at 628 (footnotes omitted). The Roviaro balancing test takes

into account “the particular circumstances of each case, the crime charged, possible

defenses, and the potential significance of the informant’s testimony.” United

States v. Gutierrez, 931 F.2d 1482, 1490 (11th Cir. 1991). This Court has “focused

the inquiry on three factors: the extent of the informant’s participation in the

criminal activity, the directness of the relationship between the defendant’s

asserted defense and the probable testimony of the informant, and the

government’s interest in nondisclosure.” Id. (quotation marks omitted).

       The defendant has the burden to show that a CI’s testimony “would

significantly aid in establishing an asserted defense,” and “[m]ere conjecture about

the possible relevance of [the CI’s] testimony is insufficient to compel disclosure.”

Id. at 1491 (quotation marks omitted); see also United States v. Alfonso, 552 F.2d

605, 618 (5th Cir. 1977) (holding that disclosure of identity of a CI used to secure

a wiretap order was not required, as the CI did not participate in the activity for

which the defendant was charged).2

       Furthermore, “[a]n in camera hearing may be helpful in balancing the

interests of the appellants against those of the government, but the precedent of this



       2
        This Court adopted as binding precedent all decisions of the former Fifth Circuit handed
down prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.
1981) (en banc).

                                               12
Court holds that an in camera hearing is not required whenever the identity of an

informant is requested.” United States v. Kerris, 748 F.2d 610, 614 (11th Cir.

1984); see also United States v. Tenorio-Angel, 756 F.2d 1505, 1509 n.7 (11th Cir.

1985) (noting that while the “Supreme Court has indicated that an in camera

hearing is one way to aid the trial court in its application of the Roviaro test[,]” the

trial court’s decision on whether to hold a hearing “depends upon whether the trial

court has the information necessary to determine if disclosure of the informant’s

identity is required without holding an in camera hearing”).3

       Vann argues that the disclosure of the CIs’ identities would establish that he

was not the drug dealer who sold the CIs the crack cocaine on April 21. However,

Vann was not charged with any crimes stemming from the April 21 drug

transactions. In fact, Vann’s misidentification defense relates to the issuance of the

search warrant and not to the crimes charged in the indictment. Because the CIs

were not involved in the criminal conduct with which Vann was indicted, Vann has

not satisfied the first Roviaro factor.

       For the same reason, Vann has not shown a direct relationship between his

defense at trial and the testimony he expects from the CIs. This is particularly true



       3
         We review the denial of a motion to disclose the identity of an informant for abuse of
discretion. Gutierrez, 931 F.2d at 1490. We also review for abuse of discretion the denial of a
request for an in camera hearing. United States v. Kerris, 748 F.2d 610, 614 (11th Cir. 1984).

                                               13
given that the government did not plan to and did not actually introduce evidence

of the April 21 drug transactions or call the CIs as government witnesses. Thus,

any testimony by the CIs that Vann was not present during the April 21 drug

transactions would not aid Vann in defending against the charged crimes that

occurred on May 3. Nor would such testimony contradict the other evidence of his

guilt, such as his confessions and the large amount of crack cocaine found in his

apartment. Thus, Vann has not satisfied the second Roviaro factor.

       Finally, as to the third Roviaro factor, the government’s interest in

nondisclosure was significant given that at least one of the CIs was threatened after

the search warrant was executed. Because the government had a strong interest in

nondisclosure and Vann failed to show that the CIs’ alleged testimony would

significantly aid him in his trial defense, the district court did not abuse its

discretion in refusing to compel disclosure of the CIs’ identities. Further, because

the district court had all the information necessary to determine whether disclosure

was required, the district court did not abuse its discretion in declining to hold an

in camera hearing on the issue.4

C.     Admission of Crack Cocaine Found in Vann’s Car



       4
        The fact that Vann’s misidentification defense relates to only the validity of the search
warrant and not to the charged crimes distinguishes his case from United States v. Rutherford,
175 F.3d 899 (11th Cir. 1999), and United States v. Panton, 846 F.2d 1335 (11th Cir. 1988).

                                                14
       Vann argues that the district court should have excluded evidence of the

crack cocaine seized from the car after the traffic stop.

       Under Federal Rule of Evidence 404(b), evidence of uncharged crimes may

be admitted only for purposes other than proof of bad character.5 Rule 404(b) is a

rule “of inclusion which allows [extrinsic] evidence unless it tends to prove only

criminal propensity.” United States v. Ellisor, 522 F.3d 1255, 1267 (11th Cir.

2008) (alteration in original) (quotation marks omitted). “Evidence, not part of the

crime charged but pertaining to the chain of events explaining the context, motive

and set-up of the crime, is properly admitted if linked in time and circumstances

with the charged crime, or forms an integral and natural part of an account of the

crime, or is necessary to complete the story of the crime for the jury.” United

States v. Williford, 764 F.2d 1493, 1499 (11th Cir. 1985). Accordingly, evidence

of uncharged crimes is admissible if it is “(1) an uncharged offense which arose out

of the same transaction or series of transactions as the charged offense,

(2) necessary to complete the story of the crime, or (3) inextricably intertwined




       5
        Rule 404(b) states:
       Evidence of other crimes, wrongs, or acts is not admissible to prove the character of
       a person in order to show action in conformity therewith. It may, however, be
       admissible for other purposes, such as proof of motive, opportunity, intent,
       preparation, plan, knowledge, identity, or absence of mistake or accident . . . .
Fed. R. Evid. 404(b).

                                                15
with the evidence regarding the charged offense.” United States v. McLean, 138

F.3d 1398, 1403 (11th Cir. 1998) (quotation marks omitted).6

       Officers stopped the car after observing Vann leave his apartment and get in

it. Immediately after stopping the car and finding the crack cocaine, officers took

Vann back to the apartment, executed the search warrant and found the additional

crack cocaine that underpins the charged drug offenses. The crack cocaine found

in the apartment was at least partially broken up into $10 and $20 rocks, and the

rock found in the car was a $10 or $20 piece.

       Given these facts, the district court did not err in finding that the crack

cocaine in the car was linked in time and circumstances with and arose from the

same transaction as the charged offenses, namely Vann’s possession of the crack

cocaine found in his apartment. The traffic stop, Vann’s arrest and the search of

the car were also all part of the chain of events leading up to discovery of the drugs

and handgun in Vann’s apartment. Further, Vann failed to articulate how the

admission of this evidence unfairly prejudiced him sufficient to substantially

outweigh its probative value. See Chavez, 204 F.3d at 1317. Thus, the district

court did not abuse its discretion in admitting evidence of the crack rock found in


       6
         We review admissions of Rule 404(b) evidence for abuse of discretion. Ellisor, 522
F.3d at 1267. Furthermore, evidence admitted in violation of Rule 404(b) is harmless when
there is substantial evidence of the defendant’s guilt. United States v. Chavez, 204 F.3d, 1305,
1317 (11th Cir. 2000).

                                                16
the car. And, in any event, given the large amount of drugs found in Vann’s

apartment and his confession, any alleged error in admitting this evidence was

harmless.

D.    Expert Testimony

      Vann contends that the district court abused its discretion when it permitted

Detective Fernendes to testify as an expert witness. Vann does not challenge

Fernendes’s qualifications as an expert or his methodologies. Rather, Vann argues

that Fernendes exceeded the scope of his role as an expert when he testified that

the amount of drugs found in Vann’s apartment was a distribution amount.

      Federal Rule of Evidence 702 permits expert testimony if “specialized

knowledge” will help the jury “to understand the evidence or to determine a fact in

issue.” Fed. R. Evid. 702. Furthermore, we have concluded that “[t]he operations

of narcotics dealers are a proper subject for expert testimony under Rule 702,” and

have “recognized the well-established rule that an experienced narcotics agent may

testify as an expert to help a jury understand the significance of certain conduct or

methods of operation unique to the drug distribution business.” United States v.

Garcia, 447 F.3d 1327, 1335 (11th Cir. 2006) (quotations marks omitted); see also

United States v. Butler, 102 F.3d 1191, 1199 (11th Cir. 1997) (holding that the

district court did not abuse its discretion in allowing testimony, based on the



                                          17
officer’s experience, that money seized was packaged in “dealer folds” – a manner

of packaging specific to drug dealers).7

       Here, Fernendes’s testimony that the amount of crack cocaine found in

Vann’s apartment was a typical distribution amount aided the jury in understanding

the significance of the possession of such a large amount of drugs. Furthermore,

any alleged error in admitting this testimony was harmless given that two other

officers also testified, without objection, that the amount of drugs found in the

apartment indicated Vann was a street-level drug dealer.

E.     Sufficiency of the Evidence on Counts 1 and 2

       Vann argues that the government failed to prove beyond a reasonable doubt

that he had the intent to distribute the crack cocaine he possessed. Because Vann

failed to properly preserve this argument by raising it in his motion for a judgment

of acquittal, we review this claim only for a miscarriage of justice. See United

States v. Tapia, 761 F.2d 1488, 1491-92 (11th Cir. 1985).8 Under this standard, we

will reverse only upon a finding that “the evidence on a key element of the offense

is so tenuous that a conviction would be shocking.” Id. (quotation marks omitted).



       7
         We review a district court’s ruling on the admissibility of expert testimony for abuse of
discretion. United States v. Douglas, 489 F.3d 1117, 1124 (11th Cir. 2007), cert. denied, 128 S.
Ct. 1875 (2008).
       8
        Vann’s initial and renewed motion for a judgment of acquittal raised only a double
jeopardy argument as to Counts 1 and 2.

                                                18
      Possession with intent to distribute crack cocaine under 21 U.S.C. §

841(a)(1) is proven by evidence of “three elements: (1) knowledge; (2) possession;

and (3) intent to distribute.” United States v. Mercer, 541 F.3d 1070, 1076 (11th

Cir. 2008), cert. denied, 129 S.Ct. 954 (2009). “Intent to distribute can be proven

circumstantially from, among other things, the quantity of cocaine and the

existence of implements such as scales commonly used in connection with the

distribution of cocaine.” United States v. Poole, 878 F.2d 1389, 1392 (11th Cir.

1989); see also United States v. Wilson, 183 F.3d 1291, 1299 (11th Cir. 1999)

(holding that sufficient evidence supported a defendant’s conviction for possession

with intent to distribute where police found seven grams of crack cocaine, with a

street value of approximately $800, and a razor blade, “which drug dealers often

use to cut up rocks of crack cocaine they intend to distribute,” in the defendant’s

car, and there was evidence from which the jury reasonably could have concluded

that possessing $800 worth of crack cocaine was associated with being a dealer and

not a consumer).

      Here, the amount of crack cocaine found in Vann’s apartment was almost 40

grams. Based on testimony that a gram of crack cocaine is equivalent to about

seven doses worth $10 each, the crack cocaine in Vann’s apartment was worth at




                                          19
least $2,688 and would have produced at least 250 doses and perhaps as much as

400 doses.

      Three witnesses testified that the amount of crack cocaine found in Vann’s

apartment indicated that he was a street-level drug dealer. Witnesses also testified

that they would not expect to find scales or documentation of drug sales in the

possession of a street-level dealer, but would expect to find a pipe in the possession

of a crack cocaine user. Officer Ferry and Detective Fernendes explained that

dealers use a razor blade, such as the one found during the search in a bag along

with several pieces of crack cocaine, to cut crack cocaine rocks into small pieces

for distribution. Detective Fernenedes also testified that the crack cocaine found in

Vann’s apartment was cut into the same shape as the rocks sold by street-level

dealers for $10 or $20 each. Detective Fernendes further testified that he had never

seen a crack cocaine user with a large amount of crack cocaine and that a typical

user would have at most seven to ten rocks. Finally, Officers Moral and Ferry both

testified that Vann admitted selling crack cocaine because he had no other income.

      This is compelling evidence that Vann possessed the crack cocaine in his

apartment in order to sell it on the street. Vann points to the testimony of his ex-

girlfriend, Armstrong, who testified that over a year before Vann was arrested she

moved out of his apartment when she saw a small amount of crack cocaine and



                                          20
learned that he was a crack user and to the lighter found with the razor blade. This

evidence of Vann’s personal use does little to undermine the ample evidence that,

at the time of the search, Vann was a street-level crack cocaine dealer.

Accordingly, we conclude that the evidence supporting a finding of an intent to

distribute was not so tenuous that Vann’s convictions on Counts 1 and 2 are

shocking. Indeed, even under a de novo standard of review, a reasonable jury

could have found beyond a reasonable doubt that Vann intended to distribute the

crack cocaine in his apartment.

E.     Simple Possession Jury Instruction

       Vann challenges the district court’s refusal to give his requested jury

instruction on the lesser-included offense of simple possession. However, Vann

did not make a written request for this instruction, as required by Federal Rule of

Criminal Procedure 30. See Fed. R. Crim. P. 30(a). Thus, the district court did not

abuse its discretion in refusing to give it. See United States v. Cunningham, 194

F.3d 1186, 1200 (11th Cir. 1999).9

       Even if Vann had properly requested a simple possession instruction, his

argument would fail. “In the specific context of possession and distribution of

drugs, this circuit has held that where the factual issues are the same for both the


       9
         We review a district court’s refusal to give a proposed jury instruction for abuse of
discretion. United States v. Klopf, 423 F.3d 1228, 1241 (11th Cir. 2005).

                                                 21
lesser offense of possession and the greater offense of distribution, the instruction

on possession is not required.” United States v. Catchings, 922 F.2d 777, 780-81

(11th Cir. 1991). Here the factual issues for both offenses were the same. And, in

light of the overwhelming evidence of an intent to distribute, no rational jury could

have concluded that Vann possessed the crack cocaine only for his personal use.

                                III. CONCLUSION

      For all the foregoing reasons, we find no reversible error and affirm Vann’s

convictions.

      AFFIRMED.




                                          22
