United States v. Stoddard

United States Court of Appeals
Fifth Circuit
F I L E D
July 9, 2007
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 06-41179
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
GREG STODDARD,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Eastern District of Texas
m 1:05-CR-151
______________________________
Before SMITH, WIENER, and OWEN,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Greg Stoddard was convicted by a jury of
possession of a firearm in furtherance of a
drug trafficking crime and possession of a con-
trolled substance with intent to distribute. He
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
(continued...)
*(...continued)
and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

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appeals his conviction, arguing that there was
insufficient evidence to sustain the verdict and
that the identification procedures used by the
police were unduly suggestive.1 Finding no
error, we affirm.
I.
About 9:30 in the evening, a truck left the
side of the road and careened into a tree. Two
witnesses approached the truck and observed
its sole occupant emerge in a daze. Both
witnesses inquired as to the driver’s health,
and one dialed 911. By the time the police
arrived, the driver had wandered away.
Inside the truck, police found a loaded .38
caliber pistol in the glove box, a TEC-9 semi-
automatic pistol in the floorboard, a large
number of plastic bags, a scale, a grinding ma-
chine, and, in the center console, a large
amount of crystal methamphetamine, and
$1,580 in currency divided up into one-hun-
dred-dollar increments. Police also found a
shirt and a pill bottle with Stoddard’s name on
them and two notebooks bearing his name and
address.
Both witnesses gave an identification of the
driver as a white male in his mid-forties with
shoulder-length salt and pepper hair, wearing
a green tee shirt and blue jeans. Stoddard was
arrested shortly thereafter at a nearby conven-
ience store wearing a green tee shirt and jeans.
The sum of $4,856 was found on his person,
packaged in similar hundred-dollar increments.
He was brought to the scene of the accident
but disclaimed knowledge of the truck or the
items inscribed with his name.
One of the witnesses encountered Stoddard
at the convenience store before the arrest and
returned to identify him at the scene. Another
witness encountered Stoddard and an officer
later that night at the hospital and positively
identified Stoddard a week later from a single-
photo display.
Stoddard pleaded not guilty to a three-
count indictment and was convicted of one
count of firearm possession and one count of
possession of methamphetamine with intent to
distribute, a third count having been dismissed
per government motion. Stoddard appeals,
claiming that the evidence was insufficient as
a matter of law on both counts and that the
witness identifications should have been sup-
pressed because the police procedures were
unduly suggestive.
II.
We first consider Stoddard’s evidentiary
objection, because the witness identifications
were a key part of the government’s case in
chief. The district court conducted an identifi-
cation hearing outside the presence of the jury
and ruled that the witnesses could identify
Stoddard in their testimony. “When reviewing
a ruling from a pretrial suppression hearing,
this Court must give credence to the credibility
choices and findings of fact of the district
court unless clearly erroneous.” United States
v. Shaw, 894 F.2d 689, 691 (5th Cir. 1990)
(citations omitted). Admission of evidence is
generally reviewed for abuse of discretion.
United States v. Rogers, 126 F.3d 655, 657
(5th Cir. 1997).
The Due Process Clause forbids the admis-
1 Stoddard asserts that the court erred by class-
ifying the methamphetamine he was convicted of
possessing as “ice.” The sentencing guidelines de-
fine “ice” as “d-methamphetamine hydrochloride of
at least 80% purity,” see U.S.S.G. § 2D1.1; the
jury, on the special verdict form, found that
Stoddard possessed “d-methamphetamine hcl” of at
least 80% purity. “Hcl” is a common chemical
abbreviation for hydrochloride, and the jury heard
testimony about the abbreviation. Stoddard’s ar-
gument is without merit.

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sion of unreliable identification testimony.
Monson v. Brathwaiter, 432 U.S. 98, 99, 114
(1977). The admissibility of identification evi-
dence is determined by (1) whether the
identification procedure was “unduly sugges-
tive” and (2) whether the procedure posed “a
very substantial likelihood of irreparable mis-
identification.” Rogers, 126 F.3d at 658. On-
ly if both questions are answered affirmatively
do we require suppression. Id. We agree with
the district court that even if the show-up and
the single-photo display were unduly sugges-
tive, the procedures did not pose a “very sub-
stantial likelihood of irreparable misidentifica-
tion.”
Courts consider five factors to determine
the likelihood of irreparable misidentification:
(1) the witness’s opportunity to view the sus-
pect at the time of the offense, (2) the wit-
ness’s degree of attention, (3) the accuracy of
the witness’s prior description of the actor,
(4) the witness’s level of certainty at the con-
frontation, and (5) the length of time between
the crime and the confrontation. Neal v. Big-
gers, 409 U.S. 188, 199 (1972). In this case,
all five factors favor the identification’s reli-
ability.
Although the accident happened at night,
there was no testimony that it was too dark to
see and the light was sufficient for both wit-
nesses to provide descriptions of the suspect.
Both witnesses spoke with the suspect direct-
ly, immediately after witnessing a significant
crash. Their prior descriptions proved accu-
rate. Neither witness suggested that they were
uncertain of the identification. One witness
identified Stoddard the night of the accident,
after seeing him twice; the other identified him
only a week later, again having seen him twice.
The district court did not abuse its discretion
by admitting the identifications.
III.
Where, as here, the defendant moved for
judgment of acquittal at the close of the evi-
dence, we decide whether the evidence is suf-
ficient by “viewing the evidence and the in-
ferences that may be drawn from it in the light
most favorable to the verdict” and determining
whether “a rational jury could have found the
essential elements of the offenses beyond a
reasonable doubt.” United States v. Pruneda-
Gonzalez, 953 F.2d 190, 193 (5th Cir. 1992).
The jury has the sole responsibility for weigh-
ing the evidence and making credibility deter-
minations. United States v. Jaramillo, 42 F.3d
920, 923 (5th Cir.1995). “It is not necessary
that the evidence exclude every rational hy-
pothesis of innocence or be whollyinconsistent
with every conclusion except guilt, provided a
reasonable trier of fact could find the evidence
establishes guilt beyond a reasonable doubt.”
Pruneda-Gonzalez, 953 F.2d at 193.
“However, we must reverse a conviction if the
evidence construed in favor of the verdict
gives equal or nearly equal circumstantial sup-
port to a theory of guilt and a theory of inno-
cence of the crime charged.”2
Stoddard argues that the evidence is insuf-
ficient to demonstrate that he possessed the
methamphetamine. The prosecution relied on
a constructive possession theory, arguing that
Stoddard maintained dominion or control over
the vehicle in which the contraband was con-
cealed. See United States v. Wright, 24 F.3d
732, 734 (5th Cir. 1994). The government
brought forth evidence that Stoddard had bor-
rowed the car and was its sole occupant when
it hit a tree carrying large amounts of metham-
phetamine. He fled the scene and later dis-
2 Jaramillo, 42 F.3d at 923; see also United
States v. Gonzales, 436 F.3d 560, 571 (5th Cir.
2006), cert. denied, 126 S. Ct. 2045 (2006), and
cert. denied, 126 S. Ct. 2362 (2006), and cert.
denied, 126 S. Ct. 2363 (2006).

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claimed any knowledge about the truck, de-
spite the presence of items in it bearing his
name.
We have rejected a constructive possession
theory based on control of a vehicle where a
passenger in the vehicle may have actually pos-
sessed the contraband. Id. at 735. Here, there
was no evidence of joint occupation on the
night in question, and Stoddard’s flight and
later disavowal of the vehicle are consistent
with knowledge of the car’s illegal contents.
The evidence was sufficient for a reasonable
fact-finder to find beyond a reasonable doubt
that Stoddard possessed the drugs.
Stoddard contends that the evidence is in-
sufficient to demonstrate that he possessed the
drugs with intent to distribute. He was arrest-
ed in possession of a large quantity of drugs,
valued at nearly twenty thousand dollars, and
large amounts of currency packaged in small
amounts. In close proximity was drug distri-
bution paraphernalia, including a scale and a
grinder. The government produced sufficient
evidence to demonstrate intent to distribute.
See, e.g., United States v. Jackson, 55 F.3d
1219, 1226 (6th Cir. 1995).
Stoddard argues that the evidence is insuf-
ficient to demonstrate that he possessed a fire-
arm in furtherance of a drug trafficking crime.
“The mere presence of a firearm at the scene
of drug activity does not alone amount to pos-
session in furtherance of that activity.” United
States v. Charles, 469 F.3d 402, 406 (5th Cir.
2006), cert. denied, 127 S. Ct. 1505 (2007).
In assessing whether a firearm is possessed in
furtherance of drug activity, relevant factors
include, inter alia, the type of drug activity,
the accessibility of the firearm, the type of
weapon, whether the weapon is loaded, the
proximity of the weapon to drugs or drug
profits, and the time and circumstances in
which the gun is found. Id.
The evidence demonstrates that Stoddard
engaged in sales from his vehicle (he had no
local address), and a loaded semi-automatic
pistol was found late at night under the floor-
board of his car in close proximity to drugs,
cash, and distribution paraphernalia. A ration-
al fact-finder could find beyond a reasonable
doubt that Stoddard possessed the gun in fur-
therance of a drug trafficking crime.
The judgment is AFFIRMED.

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