                       United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-1603
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Arkansas.
Jason Jerrel Ausler,                     *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: September 14, 2004
                                   Filed: January 26, 2005
                                   ___________

Before LOKEN, Chief Judge, BEAM and GRUENDER, Circuit Judges.
                              ___________

LOKEN, Chief Judge.

       Arkansas highway patrol officers stopped Jason Ausler's automobile after the
officers observed him speeding and weaving. During the stop, the officers discovered
seven kilogram-sized “bricks” of powder cocaine on the front passenger-side
floorboard. At a federal laboratory, a forensic chemist determined that the seven
packages contained 6,805 grams of powder cocaine. He also found 30.7 grams of
crack cocaine tucked inside one or two of the bricks. Ausler was charged with two
counts of violating 21 U.S.C. § 841(a)(1). Count One alleged that he “knowingly and
intentionally possessed with intent to distribute . . . [powder] cocaine.” Count Two
alleged that he “knowingly and intentionally possessed with intent to distribute . . .
cocaine base, also known as crack cocaine.” A jury convicted Ausler of both counts.
The district court1 sentenced him to concurrent terms of 480 months in prison on each
count. Ausler appeals, arguing there was insufficient evidence that he knowingly
possessed crack cocaine. We affirm.

       At trial, the patrol officers testified to finding the seven packages partially
covered by a sweatshirt but otherwise in plain view. They also testified that Ausler
was the sole occupant of the rented automobile and that he was observed leaning over
to the passenger side before being stopped. After the stop, Ausler could not produce
a driver’s license, identified himself as the person who rented the auto but misspelled
the name, and gave a driver’s license number that proved to be false. After his arrest,
Ausler said to one of the officers, “If I had to do it all over again, I’d have done it
different.” Regarding the crack cocaine hidden inside one or two of the bricks, a
forensic chemist testified that he cut into those bricks after noticing “obvious
lump[s]” and found a separate, smaller plastic-wrapped package of crack. The
chemist further testified that, in his experience analyzing hundreds of controlled
substances, it is “not unheard of” to find smaller packets of crack packaged inside
bricks of powder cocaine. The defense presented no witnesses or other evidence;
indeed, Ausler so disrupted the trial proceedings that he was eventually removed from
the courtroom.

       The district court instructed the jury that it could convict Ausler on Count Two
if the government proved beyond a reasonable doubt that he “intended to be in
possession of cocaine base, also known as crack cocaine.” During deliberations, the
jury sent a note asking to hear the forensic chemist’s testimony again. The court
assembled the jury in open court, and the court reporter read the chemist’s testimony.


      1
        The HONORABLE STEPHEN M. REASONER, United States District Judge
for the Eastern District of Arkansas. To our great regret, Judge Reasoner passed
away on August 14, 2004, after a long illness.

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In a second note, the jury asked whether it could “reach a verdict on one count but be
hung on the other.” The court answered that question in the affirmative. One-half
hour later, the jury returned a guilty verdict on both counts.

       Ausler does not appeal his conviction for knowingly possessing with intent to
distribute five kilograms or more of powder cocaine. But he does challenge his
conviction on Count Two, arguing that the government failed to prove that he knew
the bricks of powder cocaine contained one or more smaller packages of crack
cocaine. Our standard of review is narrow: “On appeal, we view the evidence and
all reasonable inferences therefrom in the light most favorable to the jury's verdict.
We will reverse the denial of a motion for a judgment of acquittal only if no
construction of the evidence exists to support the jury's verdict.” United States v.
Flores, 362 F.3d 1030, 1035 (8th Cir. 2004) (quotation omitted).

       The government argues that the overwhelming proof of Ausler’s knowing
possession of powder cocaine was sufficient for the jury to convict him of both
counts. Because the statute prohibits knowing or intentional possession of “a
controlled substance,” 21 U.S.C. § 841(a)(1), this court and others have held that the
government must prove only that the defendant knew he possessed a “controlled
substance,” not the specific type of controlled substance actually in his possession.
See United States v. Sheppard, 219 F.3d 766, 769 (8th Cir. 2000), cert. denied, 531
U.S. 1200 (2001); United States v. Hussein, 351 F.3d 9, 18 (1st Cir. 2003) (collecting
cases). But that principle does not apply here. The indictment separately charged
Ausler with knowing possession of powder and crack cocaine,2 and the district court
instructed the jury, without objection by the government, that it must find Ausler
“intended to be in possession of . . . crack” to convict him on Count Two. When

      2
        It is well-settled that an indictment charging the defendant with separate
violations of § 841(a)(1) for simultaneous possession of different controlled
substances “is not multiplicitous and does not violate double jeopardy.” United
States v. Vargas-Castillo, 329 F.3d 715, 720 (9th Cir. 2003) (collecting cases).

                                         -3-
given, “such an instruction . . . becomes the law of the case.” United States v. Tapio,
634 F.2d 1092, 1094 (8th Cir. 1980). Thus, we must determine whether there was
sufficient evidence that Ausler knowingly or intentionally possessed 30.7 grams of
crack, which is admittedly a distribution quantity of that controlled substance.

       The strongest evidence supporting the jury’s verdict was Ausler's exclusive
dominion and control over a partially hidden distribution quantity of two controlled
substances. The bricks of powder cocaine were tape-wrapped, yet Ausler concedes
their location and contents were sufficient to support a finding that he knowingly
possessed powder cocaine. See United States v. Cortez, 935 F.2d 135, 143 (8th Cir.
1991) (“complete and sole control and dominion over” a vehicle containing hidden
marijuana was sufficient evidence of knowing possession), cert. denied, 502 U.S.
1062 (1992). In this case, the smaller quantity of crack was hidden inside the tape-
wrapped bricks of powder cocaine. If the crack had been hidden in a secret
compartment or concealed within a large quantity of packing materials, rather than
within a second controlled substance, Cortez confirms that a rational jury could find
knowing possession of that specific controlled substance. Ausler cites no case
supporting the counter-intuitive proposition that the evidence of knowledge becomes
insufficient merely because the controlled substance was hidden within a second type
of controlled substance. Moreover, the forensic chemist testified that the small
packages of crack made an “obvious lump” on the outside of the bricks, concrete
evidence that Ausler knew the bricks contained more than powder cocaine. The jury's
request to rehear that testimony demonstrates that it gave careful attention to the
question whether Ausler knowingly possessed the crack cocaine. Like the district
court, we conclude that the evidence was sufficient to support the jury's resolution of
that issue.

      Ausler did not object to the Presentence Investigation Report nor raise any
sentencing issue on appeal. The judgment of the district court is AFFIRMED.
                      ______________________________

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