United States of America v. Carlos Alberto Gascot Concepcion

U.S. COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 25-1256
UNITED STATES OF AMERICA
v.
CARLOS ALBERTO GASCOT CONCEPCION,
Appellant
_____________________________
On Appeal from the District Court of the Virgin Islands
Judge Robert A. Molloy, No. 3:23-cr-00075-001
Before: HARDIMAN, BIBAS, and PORTER, Circuit Judges
Argued Dec. 10, 2025; Decided Mar. 10, 2026 _____________________________
OPINION OF THE COURT
PORTER, Circuit Judge.
Carlos Gascot Concepcion was arrested while
attempting to transport more than one kilogram of cocaine
from the U.S. Virgin Islands to Puerto Rico. He was charged
with one count of possession with intent to distribute a
Schedule II controlled substance. At trial, he argued that he
intended to personally consume the entire kilogram of cocaine,
not distribute it. Concepcion asked the District Court to instruct
the jury on the lesser-included offense of simple possession,
which the Court denied. He now appeals, arguing that the

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District Court abused its discretion by rejecting his proposed
jury instruction. Because no rational jury could have disputed
that Concepcion intended to distribute the cocaine, the District
Court did not abuse its discretion by refusing to instruct the
jury on simple possession. We will affirm.
I
In October 2023, Concepcion was in the St. Thomas
airport traveling from the Virgin Islands to his home in Puerto
Rico. Agents with U.S. Customs and Border Protection
(“CBP”) observed that Concepcion’s large suitcase appeared
very light when he lifted it. The agents ran his suitcase through
their x-ray machine, which revealed an anomaly. The officials
opened the suitcase and found a backpack containing a
rectangular object that was vacuum sealed, plastic-wrapped,
encased with wet wipes, and labeled “Psycho Bunny.” The
block contained a white powdery substance, later forensically
determined to be 1,009.48 grams of cocaine at a purity level of
86.5%. The search of his suitcase and fanny pack also turned
up a few articles of clothing, shoes, two small bags of a green
leafy substance, two cell phones, and some cash.
Concepcion was indicted on one count of possession
with intent to distribute cocaine. At trial, Drug Enforcement
Administration special agent Joseph Pittaluga—who had
nearly eighteen years of law enforcement experience
combatting drug trafficking—testified as an expert witness for
the government. He testified that, on St. Thomas, a kilogram
of cocaine wholesales for between $8,500 and $12,500 and
retails for between $42,000–$65,000, depending on if and how
the kilogram has been “cut.” He explained that in his
experience a user would typically purchase cocaine in “eight

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balls” (i.e., 3.5 grams), that it would take between 100–285
days for a heavy cocaine user to consume a kilogram of
cocaine, and that 86.5% is a high purity level for cocaine. He
testified that St. Thomas is a cocaine distribution hub such that
cocaine is generally moved from St. Thomas to Puerto Rico.
Finally, Agent Pittaluga testified that cocaine is generally
packaged in small baggies for personal use but that, when
intended for distribution, it is commonly packaged in the shape
of a brick, by the kilogram, and branded with the drug
trafficker’s identification.
In his defense, Concepcion called his father, Carlos
Cuadrado, who testified that Concepcion had started using
marijuana daily as a teenager, that he pays for Concepcion’s
apartment because Concepcion spends all his money on
marijuana, and that he had never personally observed
Concepcion use any drugs. Concepcion then rested his case.
Concepcion requested a jury instruction on the lesser-
included offense of simple possession, claiming Cuadrado’s
testimony supported the inference that Concepcion intended to
consume the cocaine, not distribute it. The Court denied the
request because, considering the totality of evidence adduced
at trial, no rational jury could find that Concepcion’s intent to
distribute was sufficiently in dispute. The jury convicted
Concepcion, and the Court sentenced him to fifty-five months
of incarceration and five years of supervised release. On
appeal, Concepcion challenges the District Court’s denial of
his request for a simple-possession instruction.1
1 Concepcion also appealed the District Court’s certification of
Agent Pittaluga as an expert witness, but he has since
abandoned that argument.

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II2
A
Federal Rule of Criminal Procedure 31(c) provides that
“[a] defendant may be found guilty of . . . an offense
necessarily included in the offense charged,” known as a
lesser-included offense. “A jury instruction must contain a
lesser included offense only if the evidence adduced at trial
could support a guilty verdict on either charge.” Gov’t of V.I.
v. Knight, 989 F.2d 619, 632 (3d Cir. 1993) (citing Sansone v.
United States, 380 U.S. 343, 349–50 (1965)). But district
courts “need not instruct the jury on a lesser-included offense
unless . . . a jury could rationally find the defendant guilty of
the lesser offense and not the greater.” Id. (citations omitted);
see also Keeble v. United States, 412 U.S. 205, 208 (1973).
In other words, district judges must instruct on the lesser
offense when “proof on the element that differentiates the two
offenses is sufficiently in dispute to necessitate” the
instruction. See United States v. Smith, 21 F.4th 122, 133 (4th
Cir. 2021) (cleaned up); see also United States v. Brewster, 506
F.2d 62, 71 (D.C. Cir. 1974); United States v. Jaffal, 79 F.4th
582, 608 (6th Cir. 2023); United States v. McCullough, 348
F.3d 620, 627 (7th Cir. 2003); United States v. Smith, 990 F.3d
2 The District Court had jurisdiction over this case under 48
U.S.C. § 1612(a) and 18 U.S.C. § 3231. We have appellate
jurisdiction under 28 U.S.C. § 1291. We review a District
Court’s decision not to provide a requested jury instruction for
abuse of discretion. United States v. Flores, 454 F.3d 149, 156
(3d Cir. 2006).

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607, 613–14 (8th Cir. 2021); United States v. McVeigh, 153
F.3d 1166, 1198 n.21 (10th Cir. 1998). Proof of an element is
“sufficiently in dispute” where (1) “there is evidence of sharply
conflicting testimony on that element” or, absent such conflict,
(2) “the conclusion as to the lesser offense fairly may be
inferred from the evidence presented.” Smith, 21 F.4th at 133
(citation omitted).
We pause here to clarify two matters. First, we do not
hold that merely putting on “sharply conflicting testimony” is
enough to guarantee a lesser-included offense instruction.
Otherwise, a defendant might put on speculative or conclusory
evidence to manufacture a “conflict” with the government’s
case. The testimony needs to be weighty enough to create a
genuine conflict, such that a rational jury could credit it.
Second, we do not hold that district courts must instruct
on the lesser offense even if the evidence at trial indisputably
establishes the differentiating elements of the greater offense.
In that situation, the conclusion as to the lesser offense would
not be “fairly inferable” from the evidence, making a lesser-
included offense instruction unwarranted. And such a rule
would “invite [a] jury to pick between” the greater and lesser
offenses “so as to determine the punishment to be imposed, a
duty Congress has traditionally left to the judge.” Sansone, 380
U.S. at 350 n.6. Rather, we simply hold that even if the
evidence might conceivably support a conviction on the lesser
offense, district courts should instruct the jury on that offense
only where the differentiating elements of the charged offense
are sufficiently in dispute. It is up to the district court to
determine whether, given the evidence presented at trial, a jury
could rationally convict on the lesser offense but acquit on the
greater.

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B
Applying this standard, we hold that the District Court
was within its discretion to deny Concepcion’s request for a
simple-possession instruction. We have held that “the simple
possession offense . . . is a lesser included offense of the
charged possession with intent to distribute offense.” United
States v. Lacy, 446 F.3d 448, 454 (3d Cir. 2006). “The only
difference between the two offenses is that the [latter] offense
requires proof of intent to distribute the drugs.” Id. In the drug-
possession context, then, district courts may deny a requested
simple-possession instruction “in cases with both substantial
evidence of distribution and a paucity of evidence suggesting
mere personal use.” Smith, 21 F.4th at 136.
An intent to distribute can be inferred circumstantially
and relevant factors often include the quantity of drugs
possessed, the manner of their packaging, the presence of
weapons, large amounts of cash, and equipment commonly
used for distribution. See United States v. Johnson, 302 F.3d
139, 149 (3d Cir. 2002). Indeed, “[w]hen a defendant is found
in possession of a sufficiently large quantity of drugs, an intent
to distribute may logically be inferred from the quantity of
drugs alone.” United States v. Rodriguez, 961 F.2d 1089, 1092
(3d Cir. 1992).
Here, the evidence adduced at trial overwhelmingly
evinces Concepcion’s intent to distribute the cocaine.
Concepcion was in possession of over a kilogram of high-
purity cocaine, an amount independently sufficient to infer an
intent to distribute. See, e.g., United States v. Gaviria, 740 F.2d
174, 185 (2d Cir. 1984) (681 grams of cocaine “varying in

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purity from 51.7 to 94.2 percent” sufficient for intent to
distribute); United States v. Raffo, 587 F.2d 199, 201 (5th Cir.
1979) (“The fact that nearly a kilogram of cocaine was
involved, 58,000 dosage units, supplies the foundation for the
inference of intent to distribute.”); United States v. Phibbs, 999
F.2d 1053, 1065–66 (6th Cir. 1993) (one kilogram of cocaine
sufficient for intent to distribute); United States v. Puckett, 405
F.3d 589, 601 (7th Cir. 2005) (63 grams of cocaine is “in and
of itself sufficient evidence to compel an inference that [the
defendant] intended to distribute the drug”).3
Although Concepcion’s intent to distribute can be
inferred solely from the amount of cocaine in his possession,
the District Court cited several other facts supporting his intent
to distribute it. First, Concepcion was transporting the cocaine
3 Concepcion claims “[o]ther courts have found that quantities
significantly greater than” what Concepcion possessed
“nonetheless warranted a simple possession instruction.”
Concepcion Br. at 39. But the cases he cites all involve
amounts drastically lower than what Concepcion possessed.
See United States v. Latham, 874 F.2d 852, 863 (1st Cir. 1989)
(“[A]n inference of intent to distribute is not warranted from
the possession of one ounce of cocaine.”); United States v.
Levy, 703 F.2d 791, 792 (4th Cir. 1983) (4.75 ounces of 95%
pure cocaine does not “exceed the quantity one might stockpile
for personal use . . . as to eliminate all reasonable possibility
that the jury might draw such an inference”); United States v.
Burns, 624 F.2d 95, 99 (10th Cir. 1980) (exact amount not
expressly mentioned, but cocaine recovered from a “plastic
bag” in a “briefcase”); United States v. Gibbs, 904 F.2d 52, 58–
59 (D.C. Cir. 1995) (15.5 grams of crack cocaine).

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from St. Thomas to Puerto Rico, a centralized hub in the
Caribbean distribution chain, rather than buying it in smaller
amounts in Puerto Rico. Second, his bag was packed with few
clothes and no personal effects, suggesting he was in St.
Thomas for a short time and lied about the duration and
purpose of his trip. Third, the high purity level of the cocaine
suggested it would be cut for further profit. Fourth, the
cocaine’s packaging in a brick form by the kilogram is standard
practice for drug distribution. And finally, the brick was
labeled with the trafficker’s brand, “Psycho Bunny,” a
common attribute of cocaine intended for further distribution.4
Concepcion argues that he intended to personally
consume the entire kilogram of cocaine in his possession, but
the District Court reasonably found this argument incredible.
His only evidence to support the personal-use theory was his
father’s testimony that Concepcion has long been a marijuana
user and spends most of his money on that addiction. But there
is no evidence that Concepcion ever used cocaine, or anything
other than marijuana. The District Court did not abuse its
discretion by holding that, under the totality of the evidence,
no rational jury could find that Concepcion lacked the intent to
distribute the cocaine in his possession. Thus, the District
4 Concepcion claims that this evidence of an intent to distribute
is not as strong as the government claims because much of it
relies on Agent Pittaluga’s testimony, which the jury was
“entitled to disregard.” Concepcion Reply Br. at 9–12. That the
jury was ultimately entitled to credit Agent Pittaluga’s
testimony as it wished does not detract from the fact that that
testimony contributed to the totality of evidence that the
District Court weighed against the lesser-included offense
standard.

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Court was under no obligation to instruct the jury on the lesser-
included simple possession offense.
* * *
For the reasons above, we will affirm the District
Court’s Judgment and Conviction Order.
Matthew A. Campbell [ARGUED]
Office of the Federal Public Defender
District of the Virgin Islands
Counsel for Appellants
Adam Sleeper [ARGUED]
Office of the United States Attorney
District of the Virgin Islands
U.S. Department of Justice
Counsel for Appellees

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