                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                    UNITED STATES COURT OF APPEALS
                         For the Fifth Circuit                      March 2, 2007

                                                                Charles R. Fulbruge III
                                                                        Clerk
                               No. 05-50940




                       UNITED STATES OF AMERICA

                                                     Plaintiff - Appellee


                                  VERSUS


                            BRYAN KEITH NEALY


                                                    Defendant - Appellant



            Appeal from the United States District Court
          For the Western District of Texas, Waco Division
                             W-05-CR-008



Before DAVIS and STEWART, Circuit Judges, and GODBEY*, District Judge.

PER CURIAM:**

       Bryan Keith Nealy appeals his conviction for possession of

more than five grams of cocaine base with intent to distribute

within 1000 feet of a school in violation of 21 U.S.C. §§ 841(a)(1)

and 860(a). Finding sufficient evidence to support the jury’s



  *
   District Judge of the Northern District of Texas, sitting by designation.
  **
    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should not be published and is not precedent except under the limited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.
verdict, we affirm.



                                 I.

     On August 12, 2004, Officer Rankin of the Temple Police

Department, received information concerning the Appellant, Bryan

Keith Nealy (“Nealy”), who was wanted on an outstanding warrant.

According to the information, Nealy, an African American male, was

at the Wayman Manor Apartments in Temple, Texas, wearing a red and

white jersey type shirt and dark shorts.    Officer Rankin gathered

several other officers to help arrest Nealy.    When Officer Rankin

drove up to the parking lot of the apartment complex, he saw Nealy

standing near an apartment building.       Officer Rankin contacted

Officer Bragg and advised him that Officer Bragg was walking toward

Nealy’s location.

     When Nealy spotted Officer Bragg, he began running. Nealy ran

through the grounds of an elementary school, through yards in a

nearby neighborhood by jumping some fences, and finally came over

a fence into an open field.   Another officer, Officer Schuler, was

then able to subdue Nealy.      Other officers, including Officer

Rankin, arrived shortly after Nealy’s apprehension.

     Officer Rankin conducted a pat down search of Nealy.    During

that search, Officer Rankin found a white pill bottle.       Officer

Rankin field tested the substance in the white pill bottle, which

tested positive for cocaine base.     The substance was then sent to

the crime lab for analysis and was confirmed to be a substance

                                 2
containing cocaine base, weighing 1.87 grams.     Officer Rankin did

not find any weapons, money, or drug paraphernalia on Nealy’s

person.

     Officer Rankin also found a piece of paper in Nealy’s pocket.

On one side of the paper were descriptions of cars, such as, “Green

Grand AM, 2002 Grand AM, tinted windows, black, a white Dodge, gold

SUV, Suburban . . .”      In addition, there were descriptions of

persons next to the vehicle descriptions: “white chick, white dude,

black chick, white lady, male, white boy . . .”    On the other side

of the paper, there appeared to be a ledger, which had numbers and

references to “zone.”   Officer Rankin and Officer Kallus testified

that they thought the piece of paper related to drug transactions.

     In addition to the white pill bottle found on Nealy’s person,

an orange pill bottle found in an elderly man’s backyard (in the

neighborhood through which Nealy was running) was attributed to

Nealy.    Vollie Meyers (“Meyers”) witnessed an African American man

throw some items on the ground in his backyard.    Meyers then went

to his backyard where he found the items.

     Officer Kallus spoke with Meyers about what he saw in his

backyard and secured the two plastic baggies, cigar, and orange

pill bottle found in Meyers’s backyard.     The two plastic baggies

contained marijuana. The substance from the orange pill bottle was

submitted to the lab for testing and tested positive for cocaine

base. The cocaine base weighed 3.14 grams, resulting in a total of

5.01 grams of cocaine base attributed to Nealy.

                                  3
      Nealy was indicted for intent to distribute five grams of

cocaine base within 1000 feet of a school, in violation of 21

U.S.C. §§ 841(a)(1) and 860(a).       Nealy pleaded not guilty and was

tried and convicted before a jury.          Nealy then filed a Rule 29

motion for judgment of acquittal stating that the evidence was

insufficient to sustain the conviction against him.             The district

court denied his motion.      This appeal followed.

                                    II.

      On appeal, Nealy argues that the evidence is insufficient to

support both possession of more than five grams of cocaine base and

intent to distribute. We review de novo the denial of a Rule 29

motion for judgment of acquittal, applying the same standard as in

a general review of the sufficiency of the evidence.1           In reviewing

the challenge to the sufficiency of the evidence in a criminal

case, we will affirm a conviction if a rational trier of fact could

have found that the evidence established the essential elements of

the offense beyond a reasonable doubt.2 We view all evidence in the

light most favorable to the prosecution and the verdict, accepting

all credibility choices and reasonable inferences made by the

jury.3   In conducting this review, we do not question the veracity




  1
   United States v. Burns, 162 F.3d 840, 847 (5th Cir. 1998).
  2
   See Jackson v. Virginia, 443 U.S. 307, 319 (1979).

  3
   United States v. Anderson, 174 F.3d 515, 522 (5th Cir. 1999).

                                     4
of the government’s evidence.4         The evidence need not exclude every

reasonable hypothesis of innocence or be wholly inconsistent with

every conclusion except that of guilt, and the jury is free to

choose among      reasonable     constructions     of   the    evidence.5       If,

however, the evidence gives equal or nearly equal circumstantial

support to a theory of guilt and to a theory of innocence, we will

reverse the conviction, as under these circumstances a reasonable

jury must necessarily entertain a reasonable doubt.6

       To establish a violation of 21 U.S.C. §§ 841(a)(1) and 860(a),

the government must prove beyond a reasonable doubt that the

defendant (1) knowingly; (2) possessed cocaine; (3) with intent to

distribute it; and (4) within 1000 feet of a school.7 The elements

of the offense may be proven either by direct or circumstantial

evidence.8

                                 A.   Possession

       Nealy argues that the evidence is insufficient to support the

allegation that he possessed the orange pill bottle containing 3.14

grams     of   cocaine   base.     Possession    may    be    either   actual    or




   4
    United States v. Rojas Alvarez, 451 F.3d 320, 326 (5th Cir. 2006).
   5
    United States v. Hunt, 129 F.3d 739, 742 (5th Cir. 1997).
   6
    Id.
   7
    See United States v. Kates, 174 F.3d 580, 582 (5th Cir. 1999); 21 U.S.C. §§
841(a) and 860(a).
   8
    Hunt, 129 F.3d at 742.

                                        5
constructive and may be joint among several people.9 Constructive

possession is ownership, dominion, or control over the illegal

drugs, or over the premises where drugs are found.10

        A reasonable jury could infer that Nealy possessed the 3.14

grams of cocaine base found in the orange pill bottle in Meyers’s

backyard.       Meyers was watching television, and saw an African

American male run through his backyard and move his arm as if he

was throwing something down. Meyers testified that the orange pill

bottle did not belong to him, and he had been in his backyard

earlier that day and the items were not present. Meyers could not

identify the man who ran through his backyard, but testified that

the police were chasing him, and the man jumped the fence into his

neighbor’s backyard and continued jumping fences. Although no one

actually saw Nealy go into Meyers’s backyard, Nealy was running

through     backyards    in   Meyers’s   neighborhood,     and   was   observed

jumping over a fence just two houses east of Meyers’s house moments

after Meyers found the items in his backyard. In addition, the

cocaine base discovered in Meyers’s backyard was in a pill bottle,

and the cocaine base found on Nealy’s person was also in a pill

bottle. As a result, there was sufficient evidence for the jury to

conclude that Nealy possessed the 3.14 grams of cocaine base in the

orange pill bottle.


  9
   United States v. Skipper, 74 F.3d 608, 611 (5th Cir. 1996).

  10
       United States v. Onick, 889 F.2d 1425, 1429 (5th Cir. 1989).

                                         6
                           B. Intent to Distribute

        Intent    to   distribute     may    be   inferred    solely   from     the

possession of a quantity of drugs too large to be used by the

defendant alone.11 However, a quantity that is consistent with

personal use does not, by itself, raise an inference of intent to

distribute such drugs.12         The presence of additional evidence, such

as drug distribution paraphernalia, guns, or large quantities of

cash or the value and quality of the substance, is necessary.13

        Nealy possessed 5.01 grams of cocaine base. The government

introduced testimony indicating that this amount of drugs suggested

drug dealing. However, the testimony also indicated that this

quantity is not clearly inconsistent with personal use. As a

result,      additional    evidence    is    necessary   to    show    intent   to

distribute.14

        The government has provided this additional evidence. The

government elicited testimony indicating that the piece of paper

found in Nealy’s pocket was a “drug ledger.” Specifically, Officer

Rankin testified that “zone” referred to an ounce of illegal

drugs.15     In explaining the ledger, Officer Rankin stated:

  11
       Kates, 174 F.3d at 582.
  12
       Id.
  13
       See id.; Skipper, 74 F.3d at 611; Hunt, 129 F.3d at 743-44.
  14
       See Skipper, 74 F.3d at 611; Hunt, 129 F.3d at 742.
  15
       The following writing was found on one side of the note:

  475 zone - 3 zones 1,425; 2625 - 1,200

                                         7
     And in the bottom right under that line is another line
     that’s showing 375 zone. What it looks to be would be
     what someone would be paying for an ounce of drugs on the
     street, and then if you look over here it shows what he
     would sell it for and then you have the balance over here
     which I’m assuming would be his profit.

     The Government also offered the testimony of Officer Kallus

who provided his expert opinion that the note is a drug ledger.

Officer Kallus, an officer with seventeen years of experience with

the Temple Police Department and six years of experience as a

narcotics    interdiction    officer,         testified   that,      based   on   his

experience    in   dealing   with    drug      ledgers    and   experience        from

debriefings, the word “zone” was used in reference to cocaine,

cocaine base, and methamphetamine.              According to Officer Kallus,

the paper found on Nealy with notes referring to “zones” and

numeric amounts were “drug notes,” detailing the amount each ounce

of cocaine costs, what it could be sold for, and how much profit

could be made from the sale of the cocaine.                In addition, at the

time of Nealy’s arrest, cocaine was selling for approximately $350

to $500 per ounce, and Nealy’s paper showed “475 for a zone,” and

“375 for a zone.”        Kallus also testified that, in his past

narcotics    investigations,        the       descriptions      of    persons      and

automobiles found on the other side of the paper were the types of

notes that would be kept by a street dealer if drugs had been sold

to someone who was unknown to him, and if that is an undercover

vehicle, the dealer will know when it shows up the next time.


  375 zone - (9) qk 3,375 / 600 = 5400.

                                          8
        Nealy argues that this evidence is “highly speculative,” and

the evidence showed that the piece of paper could have been used in

referring to Nealy’s car detailing business.

        Although Nealy is correct that “[a] verdict may not rest on

mere suspicion, speculation or conjecture, or an overly attenuated

piling of inference on inference,”16 the jury did not convict Nealy

on mere speculation.           The jury was entitled to evaluate the

evidence provided by Officers Rankin and Kallus and make its own

conclusion.         Here,   the   jury   presumably    drew   the   reasonable

inference that the piece of paper was a drug ledger prepared by

someone in the business of selling drugs for a profit.               There was

no plausible evidence negating the government’s argument that the

note found in Nealy’s pocket was a drug ledger.            Although on cross-

examination government testimony indicated that it was “possible”

that the list of vehicles and descriptions of individuals represent

cars that Nealy had detailed and the owners of those cars, the

balance of the writing was left unexplained.            In addition, Officer

Kallus stuck to his opinion that the paper was a drug note.               As a

result, making all credibility determinations in favor of the

jury’s verdict, the evidence supports a finding that, in addition

to the quantity of cocaine base possessed by Nealy, Nealy also

carried with him a drug ledger that one engaged in selling drugs

would use.


  16
       United States v. Pettigrew, 77 F.3d 1500, 1521 (5th Cir. 1996).

                                         9
        Viewing the evidence in the light most favorable to the

verdict, we are satisfied that a rational trier of fact could

reasonably find that Nealy possessed with an intent to distribute

more than five grams of cocaine base within 1000 feet of a school.17

                                       III.

        For the reasons stated, we AFFIRM Nealy’s conviction.




  17
       Nealy does not dispute that he was within 1000 feet of a school.

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