                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 07-2204
                                  ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Eastern District of Missouri.
Victor Santoyo-Torres, also known as *
      Antonio Torres-Liberato,         *
                                       *
            Defendant - Appellant.     *
                                  ___________

                             Submitted: January 15, 2008
                                Filed: February 26, 2008
                                 ___________

Before LOKEN, Chief Judge, MURPHY, Circuit Judge, and JARVEY,1 District
Judge.
                            ___________

MURPHY, Circuit Judge.

      A jury convicted Santoyo-Torres of possessing in excess of 50 grams of
methamphetamine with intent to distribute, in violation of § 841(a)(1), and he was
sentenced to 63 months imprisonment. Santoyo-Torres appeals, arguing that there




      1
        The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa, sitting by designation.
was insufficient evidence to sustain his conviction and claiming that the district court2
abused its discretion by declining to give a jury instruction on a lesser included
offense. We affirm.

       Early in the morning on November 1, 2006 Santoyo-Torres arrived at the Drury
Inn in St. Louis County with no luggage. He paid for a hotel room with cash and used
a frayed Kansas driver's license to identify himself. The county drug interdiction
group had received a tip concerning drugs and Santoyo-Torres, and members of the
group arrived at the Drury Inn around 8:30 am to conduct surveillance. They saw
Santoyo-Torres leave the hotel around 11:40 am carrying a box, a brown paper bag,
and a plastic bag, but no luggage. In the hotel parking lot Santoyo-Torres placed the
box and bags behind the floorboard on the driver side of a blue truck with Missouri
license plates. He then got in the truck and drove away alone.

       Soon after leaving the hotel, the officers observed Santoyo-Torres commit a
traffic violation by failing to signal as he left a parking lot. They stopped him and
confirmed that the license plates on the truck were registered to a different vehicle,
another Missouri traffic violation. When asked for his driver license, Santoyo-Torres
produced a Kansas state identification card, not the driver license he had produced at
the hotel. An officer advised him of the traffic violations and issued a citation.

       Santoyo-Torres gave the officers permission to move the truck to a nearby mall
parking lot because it was blocking traffic on the street. Detective Jerome Paskiewicz
entered the truck and noticed two Western Union "MoneyGram" receipts in plain view
on the front seat. The receipts were dated October 31, 2006; one bore the name Victor
Torres, the other the name Armando Santoyo-Torres. Each MoneyGram was for just
under $1000, and a Western Union employee testified that any transaction of $1000


      2
        The Honorable Charles A. Shaw, United States District Judge for the Eastern
District of Missouri.

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or more requires the sender to present identification. When questioned about the
receipts, Santoyo-Torres explained that one transfer was for his wife and the other was
for his brother. In a later interview with an Immigration Customs Enforcement (ICE)
agent, he admitted he was not married.

       Santoyo-Torres claimed he did not have anything illegal in his vehicle and
consented to a search of his truck. Officers located the brown paper bag that Santoyo-
Torres had carried out of the hotel lobby. Inside the bag they found a clear plastic bag
filled with a white flaky substance which was later found by the Drug Enforcement
Administration (DEA) to be 138.5 grams of pure crystal methamphetamine. The bag
also contained a small digital scale and a pair of men's underwear. In the truck
officers discovered two cellular phones, one of which was a pay as you go phone that
does not require a contract, and a piece of broken fluorescent light bulb with
methamphetamine residue on it. Defendant was arrested and had $390 on his person
at the time of the search.

      Federal DEA agents took over the investigation because of the quantity of drugs
involved. Santoyo-Torres told the agents the methamphetamine was his but declined
to make a controlled delivery to further the investigation. Paskiewicz testified at trial
that possession of the digital scale in conjunction with 138.5 grams of
methamphetamine was consistent with an intent to distribute and inconsistent with
personal use.

      The government's expert witness, Jason Grellner of the Franklin County
Sheriff's Department, testified at trial that in his opinion the 138.5 grams of
methamphetamine was for distribution rather than personal use. He gave several
reasons for that opinion. During fourteen years of investigating more than 1000
methamphetamine production and distribution cases, he had never encountered
anyone possessing 138.5 grams for personal use. With a street value of $13,850,
Grellner believed that amount would represent an unreasonably expensive and large

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personal supply even for the most addicted users who inject methamphetamine. There
were no needles present in the truck or on Santoyo-Torres, and the broken piece of
light bulb was too large to be a smoking device. Grellner testified that a gram scale
is a tool of the methamphetamine trade, and he had never seen a user carrying a gram
scale. The substance Santoyo-Torres had been carrying was high purity crystal
methamphetamine of the type typically manufactured at large laboratories outside of
Missouri, not the lower purity drug produced by local manufacturers in smaller
quantities. Finally, Grellner testified that narcotics traffickers commonly rely on
electronic payment services such as Western Union to avoid being stopped with large
quantities of cash which might be subject to seizure by law enforcement. Based on
this information he believed Santoyo-Torres possessed the methamphetamine with the
intent to distribute it.

       After the government presented its evidence Santoyo-Torres moved for a
judgment of acquittal, arguing that the government had not met its burden to prove
that he was in possession of the methamphetamine with intent to distribute. The
district court denied the motion. Santoyo-Torres then proffered a jury instruction on
the lesser included offense of possession. The government objected, noting that the
only charge in the indictment was for possession with intent to distribute and that
there was no evidence to support his theory that he possessed the methamphetamine
for personal use. The district court denied the motion. The jury convicted Santoyo-
Torres of possessing over 50 grams of methamphetamine with intent to distribute it.

       Santoyo-Torres contends that the court erred in denying his motion for a
judgment of acquittal because there was insufficient evidence to convict him of
possession of methamphetamine with intent to distribute. We review de novo the
district court's denial of a motion for a judgment of acquittal, viewing the evidence in
the light most favorable to the verdict. United States v. Hively, 437 F.3d 752, 760
(8th Cir. 2006). We will reverse a conviction only if we find that no reasonable jury



                                          -4-
could have found the defendant guilty. United States v. Peneaux, 432 F.3d 882, 890
(8th Cir. 2005).

        We conclude that the district court did not err in denying Santoyo-Torres's
motion for a judgment of acquittal. Government witnesses with extensive experience
in methamphetamine cases testified at trial that possession of 138.5 grams of
methamphetamine is not consistent with personal use. See United States v. Flores,
474 F.3d 1100, 1105 (8th Cir. 2007) (large quantity of drugs alone is sufficient
evidence of intent to distribute). The government's expert witness testified that the
drug's high purity, the presence of other tools of the trade such as the digital scale, the
large light bulb with traces of methamphetamine, the quantity of cash, and the two
Western Union receipts for an amount just under $1,000 indicated that Santoyo-Torres
intended to distribute the methamphetamine. See United States v. Sanders, 341 F.3d
809, 816 (8th Cir. 2003) (small amount of contraband may combine with
circumstantial evidence to support finding of intent to distribute). Witnesses also
testified that appellant's brief hotel stay with no luggage except one pair of clean
underwear, his conflicting statements about his two forms of identification, his use of
an alias, and his marital status showed an intent to distribute. See United States v.
Milam, 494 F.3d 640, 643 (8th Cir. 2007) (job of jury, not court, to assess witness
credibility); United States v. Bryson, 110 F.3d 575, 585 (8th Cir. 1997) (repeated use
of alias probative of consciousness of guilt).

       Santoyo-Torres argues that the district court abused its discretion in refusing
to give his proffered instruction on the lesser included offense of simple possession
of methamphetamine. The government responds that there was no evidence of
personal use and that the evidence offered at trial pointed only to possession for sale
or distribution. We review a district court's denial of a motion for a jury instruction
on a lesser included offense for abuse of discretion. See, e.g., United States v. Lee,
374 F.3d 637, 646 (8th Cir. 2004). Upon proper request by a party, a lesser included
offense instruction is appropriate if certain requirements are met, including the proffer

                                           -5-
of some evidence "which would justify conviction of the lesser offense." E.g., United
States v. Gordon, 510 F.3d 811, 817 (8th Cir. 2007). A lesser included offense
instruction is not warranted in the absence of evidence that a large quantity of
narcotics was for the defendant's personal use. See United States v. Parker, 32 F.3d
395, 401 (8th Cir. 1994).

       The government's expert testified that he had never seen someone possess 138.5
grams or more of methamphetamine for personal use, and the government presented
circumstantial evidence which supported its theory on the intent to distribute charge.
No evidence supporting a simple possession instruction was introduced. Based on the
large quantity of high purity methamphetamine found in the truck, the digital scale,
the cash and money order receipts, and the unusual circumstances related to his hotel
stay and lack of luggage, the district court did not abuse its discretion by concluding
that there was no rational basis for instructing the jury on a lesser included offense or
by denying defendant's motion to give such an instruction.

      For these reasons we affirm the judgment of the district court.
                      ______________________________




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