                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 08-4287


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ANTONIO MAURICE CRAIG, a/k/a Cup,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:06-cr-00088-FDW-CH-1)


Argued:   October 28, 2009               Decided:   December 30, 2009


Before MOTZ and GREGORY, Circuit Judges, and Benson E. LEGG,
Chief United States District Judge for the District of Maryland,
sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Matthew Segal, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant.   Mark
Andrew Jones, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte,
North Carolina, for Appellee.     ON BRIEF: Claire J. Rauscher,
Executive Director, Cecilia Oseguera, FEDERAL DEFENDERS OF
WESTERN   NORTH  CAROLINA,  INC.,   Charlotte,  North  Carolina;
Fredilyn Sison, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Asheville, North Carolina, for Appellant. Gretchen C. F.
Shappert, United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

      Antonio     Maurice       Craig      appeals    his    convictions        for

possession      with   intent    to     distribute   cocaine      base    and   for

conspiracy to possess and distribute cocaine base.                       He argues

that the district court abused its discretion in refusing to

issue a lesser included offense instruction for powder cocaine,

that the evidence was insufficient to support his convictions,

and that the district court abused its discretion in admitting

hearsay testimony.        For the reasons that follow, we affirm.



                                           I.

      A grand jury issued a three-count indictment against Craig.

Count One charged conspiracy to possess and distribute at least

fifty grams of cocaine base from March 2005 to March 31, 2006 in

violation of 21 U.S.C. §§ 841(b)(1), 846.              This crime related to

a series of alleged hand-to-hand transactions committed during

this time period.

      Count Two charged possession with intent to distribute at

least five grams of cocaine base on March 12, 2005 in violation

of 21 U.S.C. § 841(a)(1), (b)(1)(B).                 On March 12, a police

officer stopped Craig’s vehicle and found a 7.54 gram crack rock

in the front of the car as well as a smaller piece of crack in

the   back   seat.     During    a    pat-down   search,    the    officer      also

discovered    a   small    baggie     of   cocaine   (.35   grams)   in    Craig’s

                                           3
pocket.      Craig’s brother, a fugitive at the time, was in the car

as well.

      Count Three charged possession with intent to distribute at

least five grams of cocaine base on March 31, 2005 in violation

of 21 U.S.C. § 841(a)(1), (b)(1)(B) and 18 U.S.C. § 2.                                  This

charge arose out of the search of a home rented and occupied by

Craig, which yielded a 5.94 gram crack rock and drug dealing

paraphernalia.

      Craig pleaded not guilty, and his case went to trial before

a   jury.      Although       the    Government     did        not    charge    Craig   with

possession         of   powder    cocaine,       defense       counsel    permitted     the

introduction of the powder seized on March 12, purportedly to

bolster a theory that Craig’s use of powder cocaine constituted

his only contact with drugs.

      At     the    close    of     evidence,     Craig’s       attorney       requested   a

lesser      included      offense     instruction        for    possession       of   powder

cocaine.      The district court refused to give the instruction on

the   ground       that     the   Government       had    not        charged   Craig    with

possession of the baggie of powder cocaine.

      While deliberating, the jury asked, among other things, to

see testimony relating to the baggie of cocaine that the police

seized from Craig on March 12.               The court refused to furnish the

jurors with a transcript of the testimony, but allowed them to

view the evidence itself if they wished.

                                             4
       Shortly         thereafter,             the   jury       returned    a    verdict      finding

Craig guilty of the crimes charged in Counts One and Two, and

acquitting him of the crime charged in Count Three.                                     The verdict

form       asked       the     jury       to     find       a    quantity       of    cocaine     base

foreseeable to Craig under each count of the indictment.                                          For

each of the two convictions, the jury checked a box finding less

than       five    grams       of       cocaine      base       foreseeable      to   Craig.      The

district court sentenced Craig to a prison term of 240 months.

       Craig timely appeals, raising three contentions, which we

consider in turn.



                                                     II.

       First,          Craig    argues          that       the    district       court    erred    in

refusing          to   issue        a    lesser      included       offense      instruction      for

possession of powder cocaine. 1

       Federal Rule of Criminal Procedure 31(c) provides that a

“defendant may be found guilty of . . . an offense necessarily

included          in   the     offense         charged.”           Fed.    R.   Crim.    P.     31(c).


       1
       The district court also denied Craig’s request for a
lesser included offense instruction for simple possession of
crack.   Craig does not pursue that request on appeal.  Rather,
Craig now simply contends that a powder cocaine offense
constitutes a subset of a crack cocaine offense, which entitles
him to a lesser included offense instruction for Count Two
(relating to March 12, the day that the police seized powder
cocaine from his person), and for Count One (to the extent that
the events of March 12 also support that conviction).


                                                       5
Concerned that prosecutors may be tempted to obtain unjustly

harsh convictions by forcing a jury to decide between conviction

of a very serious offense or acquittal, the Supreme Court has

held       that   defendants     may    request            a   lesser   included    offense

instruction        to    give   the    jury       a       more   palatable   alternative.

Keeble v. United States, 412 U.S. 205, 212-13 (1973).

       A     trial      court   must   issue          a    requested     lesser    included

offense instruction when “the elements of the lesser offense are

a subset of elements of the charged offense.”                           Schmuck v. United

States, 489 U.S. 705, 716 (1989).                     Craig argues that because the

elements of possession of powder cocaine constitute a subset of

the elements of possession of cocaine base, see United States v.

Brisbane, 367 F.3d 910, 914 (D.C. Cir. 2004), 2 the district court

should have issued a lesser included offense instruction in this

case.

       Craig’s argument fails because it misapprehends the purpose

of the lesser included offense instruction.                         Such an instruction

serves to prevent the prosecution from characterizing a single

crime as overly severe -- not to force the prosecution to charge

a defendant, who commits two crimes, with the less severe of the

two.       We rejected a very similar argument in United States v.


       2
       We need not, and do not, reach the question whether, as a
legal matter, the elements of powder cocaine offenses constitute
a subset of the elements of cocaine base offenses.


                                              6
Echeverri-Jaramillo, 777 F.2d 933 (4th Cir. 1985). 3           There, the

defendant -- charged with possession with intent to distribute

over thirty-five pounds of cocaine, which he offloaded from a

boat -- requested a lesser included offense instruction relating

to a small amount of cocaine that he possessed in his pocket.

Id. at 934-35.       We upheld the district court’s refusal to give

such an instruction, reasoning:

     The indictment against Echeverri . . . recited overt
     acts relating only to the over thirty-five pounds of
     cocaine which were removed from the [boat]. . . . The
     smaller amount of cocaine allegedly possessed by
     Echeverri . . . was not part of the indictment and
     consequently   had  no   role  in   the  judge’s   jury
     instructions as to the nature of the crimes charged.

Id. at 935.

     In this case, as in Echeverri-Jaramillo, the “overt acts”

recited   in   the   indictment   do   not   include   possession   of   the

“smaller amount of cocaine,” here the baggie. 4          Craig’s argument


     3
       Craig argues that Schmuck overruled Echeverri-Jaramillo.
In fact, Schmuck expressly states that its holding “in no way
alters” the rule relied on in Echeverri-Jaramillo and in the
case at hand, that “the evidence at trial must be such that a
jury could rationally find the defendant guilty of the lesser
offense, yet acquit him of the greater.” 489 U.S. at 716 n.8.
     4
        Craig suggests that because the indictment did not
specifically mention the crack rock in his car, it was ambiguous
as to whether he was being tried for the crack, the powder, or
both. However, the indictment specified that Craig possessed “a
mixture and substance containing a detectable amount of cocaine
base, commonly known as crack cocaine.”        Furthermore, the
indictment alleged that Craig possessed “at least five grams of
a mixture containing . . . crack cocaine.”         Although the
(Continued)
                                       7
is therefore not that the conduct charged in the indictment was

less serious than the indictment alleges.                     Rather, he contends

that this court should force the Government to prosecute him for

entirely separate conduct.           But “the decision to prosecute is

particularly ill-suited to judicial review.”                         Wayte v. United

States, 470 U.S. 598, 607 (1985).            Here, we decline to second-

guess    the   prosecutor’s     decision     not        to     charge       Craig   with

possession of the baggie of powder cocaine.                     We therefore hold

that the district judge did not err by refusing to issue a

lesser included offense instruction.



                                     III.

       Craig also challenges the sufficiency of the evidence to

support his convictions.        With regard to Count One, Craig argues

that the evidence against him, indicating that he engaged in

multiple   hand-to-hand       transactions   each        day,        is   inconsistent

with the jury’s attribution of less than five grams to him.                           As

to Count Two, Craig argues that the 7.54 gram crack rock, the

only    cocaine   base   in    his   vehicle       on        March    12,     is    again

inconsistent with the jury’s attribution to him of less than

five grams of cocaine base.          In sum, Craig argues that because



indictment could have been more specific and mentioned the 7.54
gram crack rock, it was certainly not vague enough to be
ambiguous on this point.


                                       8
the   jury        found    him    responsible         for    such    a    small       amount     of

cocaine base, it implicitly rejected all of the evidence against

him, which tended to show that he was responsible for a much

larger amount of cocaine base.

        A   defendant       challenging       the      sufficiency        of    the        evidence

bears a “heavy burden.”                    United States v. Beidler, 110 F.3d

1064, 1067 (4th Cir. 1997).                 We must uphold a jury’s verdict if

the     evidence,         viewed     in    the       light   most        favorable         to   the

Government, would permit a reasonable finder of fact to find the

defendant guilty beyond a reasonable doubt.                               United States v.

Foster, 507 F.3d 233, 245 (4th Cir. 2007); United States v.

Burgos, 94 F.3d 849, 862 (4th cir. 1996) (en banc).                                   We reverse

only where “where the prosecution’s failure is clear.”                                     Burks v.

United States, 437 U.S. 1, 17 (1978); Foster, 507 F.3d at 244-

45.

        To prove possession with intent to distribute cocaine base,

the Government must show (1) possession of the cocaine base; (2)

knowledge of this possession; and (3) intent to distribute.                                     See

Burgos,       94    F.3d     at     873.         Possession         may    be        “actual     or

constructive, and it may be sole or joint.”                                 Id. (quotation

marks       and    citation        omitted).          The    “elements          of     a    §   846

conspiracy are (1) an agreement between two or more persons to

violate      federal       law     relating      to     controlled         substances;          (2)

knowledge of the essential objectives of the conspiracy; (3)

                                                 9
knowing            and        voluntary      involvement       therein;     and        (4)

interdependence among the conspirators.”                      United States v. Hall,

551 F.3d 257, 268 n.13 (4th Cir. 2009).

       Craig relies on dicta from Pipefitters Local Union No. 562

v. United States, 407 U.S. 385, 400 n.11 (1972), to argue that

if the jury’s specific verdict that Craig was responsible for

less than five grams of cocaine base is inconsistent with its

general verdict, then his conviction cannot stand.                              Whatever

force the Pipefitters dicta may have once had, it withered when

the    Supreme         Court,     in   United   States   v.    Powell,    469   U.S.    57

(1984), subsequently reaffirmed the decades-old principle that

controls here. 5              In Powell the Court explained that “where truly

inconsistent verdicts have been reached, ‘[t]he most that can be

said       .   .   .     is    that    the   verdict   shows   that   either     in    the

acquittal or the conviction the jury did not speak their real


       5
       Craig attempts to distinguish Powell on the ground that
Powell addressed only cases in which the verdict on one count is
inconsistent with the verdict on another, while in this case,
the inconsistent verdicts are the specific and general verdict
on the same count.     See Powell, 469 U.S. at 59.    This is a
distinction without a difference. The rationale of Powell, that
an appellate court should not infer innocence when a jury,
whether “through mistake, compromise, or lenity,” reaches
inconsistent verdicts, applies with full force here. Id. at 65.
Moreover, the Powell Court expressly considered and rejected the
argument   that    inconsistent   verdicts   justify   appellate
intervention even “where the jury acquits a defendant of a
predicate felony, but convicts on the compound felony,” a
circumstance extremely close to the facts of this case. Id. at
67.


                                                10
conclusions, but that does not show that they were not convinced

of   the      defendant's     guilt.’”              Id.     at    64-65       (alteration                in

original)      (quoting      Dunn   v.       United       States,       284       U.S.       390,       393

(1932)).

       Furthermore,       after        examining          the     facts,          we     detect         no

inconsistency         between     the        jury’s       specific       verdict             and        its

general verdict.          While Craig may be able to stake out a claim

that    the    jury    intended       to     show     him       mercy,       or    to       apportion

responsibility for his crimes among multiple perpetrators, he

cannot     sustain     his    “heavy       burden”        to     show    that          no    rational

factfinder could find him guilty of the offenses charged in the

indictment      and    also   find      him    responsible             for    less          than    five

grams of cocaine base.

       With regard to Count One, multiple witnesses testified that

Craig dealt crack cocaine, and the jury could have partially

credited their statements to arrive at the conclusion that Craig

dealt    a    small    amount     of     crack.           The     jury       could       also       have

determined      that    the     events        of    March        12,    2005,          when    police

arrested       Craig    and     his        brother        together,           amounted             to     a

conspiracy       to    possess         and     distribute          crack          cocaine           that

satisfied the requirements of Count One of the indictment.

       As to Count Two, the jury could have apportioned the 7.54

grams of crack in various amounts to Craig and his brother.                                              It

could also have found that Craig possessed the smaller piece of

                                               11
crack located under the rear seat of his car.                          Alternately, the

jury could have decided to show mercy and find Craig guilty of

possessing less crack than the evidence suggested he actually

possessed.

     Ultimately,        we    do    not   know    how    the    jury     considered      the

evidence.       All we know for certain is that after considering the

evidence, the jury found Craig guilty of two of the charged

offenses, and the record contains sufficient evidence to support

that verdict.



                                            IV.

     Finally,      Craig      argues      that    the    district      court     erred    by

overruling his objection to the hearsay testimony of FBI agent

David Drew.        Agent Drew testified that he used an informant,

Sean Wright, to purchase drugs and report the transactions to

Drew.     On cross-examination, defense counsel asked Drew whether

Wright    had    ever   told       Drew   that    he    had    purchased       drugs   from

Craig.      Drew   responded         that   he    had    not.      On    redirect,       the

Government asked Drew to relate Wright’s observations.                                 Drew

responded that Wright had told him that he observed Craig make a

hand-to-hand       narcotic        transaction          with    another        individual.

Defense    counsel      did   not    object       to    the    hearsay    at    that   time

because the Government had subpoenaed Wright to appear later in

the trial.       After Wright failed to appear, defense counsel did

                                            12
promptly object to the hearsay testimony.                          The district court

overruled the objection on the grounds that it was not timely,

and that Craig’s attorney had “opened the door” to the hearsay

by     soliciting     hearsay      testimony         from    Agent        Drew       on    cross

examination.

       For purposes of our review, we will assume defense counsel

lodged a timely objection to the hearsay.                           The parties agree

that we review rejection of even a timely objection to hearsay

for    abuse   of   discretion.          “A       district    court       is    given      broad

discretion in its evidentiary rulings, which are entitled to

substantial deference.”            United States v. Murray, 65 F.3d 1161,

1170    (4th   Cir.       1995).    For       a    district       court    to        abuse   its

discretion, it must act “arbitrarily or irrationally.”                                    United

States v. Achiekwelu, 112 F.3d 747, 753 (4th Cir. 1997).

       Hearsay testimony is generally inadmissible.                             See Fed. R.

Evid. 802.       However, a court may admit such testimony if the

opposing party “opened the door” by soliciting similar testimony

herself.       See United States v. Williams, 106 F.3d 1173, 1177

(4th Cir. 1997).            In Williams, on cross examination, defense

counsel     asked     a     government     agent       whether       he        had    personal

knowledge      of     any    dealings      between          the    defendant           and    an

informant; the agent responded that he did not.                                On re-direct

examination, the prosecutor asked, “[a]nd did [the informant]

say whether or not he had ever obtained methamphetamine from the

                                              13
defendant?”          The   agent   answered      “yes.”       Id.    at   1177.     The

defense       objected     to    the    statement      as    hearsay,      the     court

overruled      the    objection     because      the   defense      had   “opened    the

door,” and we affirmed.

       Williams controls here.            In Williams, the defense did not

directly solicit hearsay testimony.                    Rather, it merely asked

whether the agent had “personal knowledge” of illicit dealings.

In this case, by contrast, Craig’s attorney explicitly solicited

hearsay testimony.          If the door was open in Williams, then it is

wide       agape   here,   and     we   cannot    deem      the   district       court’s

decision an abuse of discretion. 6



                                          V.

       In sum, we hold that Craig had no entitlement to a lesser

included offense instruction, that the jury possessed sufficient

evidence to convict him, and that the district court did not



       6
       Craig would have us rely, instead, on Achiekwelu, in which
we affirmed a district court’s decision to permit the Government
to offer a tardy objection to an unauthenticated exhibit.
Achiekwelu is inapposite for two reasons.    First, the district
court sustained the objection in Achiekwelu, but overruled it
here. Thus, Achiekwelu does not stand for the proposition that
tardy objections will always suffice. Rather, it suggests that
even though tardy objections are disfavored, an appellate court
will defer to the trial court’s decision to permit such an
objection. Second, Achiekwelu dealt only with timeliness of an
objection.   It said nothing about whether the defense “opened
the door” to hearsay, the key issue here.


                                          14
abuse   its    discretion   in   admitting   Agent   Drew’s    hearsay

testimony.    The judgment of the district court is therefore

                                                              AFFIRMED.




                                  15
