Linda Mays v. H.G. Rhodes

1The Honorable Thomas M. Shanahan, United States District Judge for the
District of Nebraska.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-3395
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Don A. Armstrong, *
*
Appellant. *
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Submitted: April 19, 2001
Filed: June 7, 2001
___________
Before WOLLMAN, Chief Judge, BEAM, and HANSEN, Circuit Judges.
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WOLLMAN, Chief Judge.
Don A. Armstrong appeals from his conviction in district court1 of possession
with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1). We
affirm.
Armstrong was indicted and tried on three counts of possession with intent to
distribute methamphetamine as a result of three separate and unrelated offenses. On

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2We have considered Armstrong’s contention at trial and during oral argument
that Armstrong’s carrying of a small gun was not evidence of an intent to distribute
because drug dealers prefer larger, more imposing weapons. Armstrong has not
presented any evidence to support this proposition, however, and we are not disposed
to engage in conjecture regarding the weapons-carrying preferences of drug dealers.
We do question whether, in light of the ubiquitousness of cellular telephones, the
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August 12, 1998, Armstrong was arrested with 35.35 grams of methamphetamine
(count I), on September 7, 1998, with 28.02 grams of methamphetamine (count II), and
on July 5, 1999, with six packages containing a total of 96.4 grams of
methamphetamine (count III). A jury found Armstrong guilty of the lesser included
offense of possession of methamphetamine on counts I and II, but guilty of possession
with intent to distribute methamphetamine on count III. Armstrong appeals only his
conviction on count III, for which he was sentenced to imprisonment for 110 months.
Armstrong essentially argues that we should set aside his conviction because the
jury’s verdict was inconsistent. During the traffic stop that led to his arrest in July of
1999, Armstrong handed his methamphetamine to a passenger in his car to hide from
police. He alleges that the verdict, along with a jury request for clarification of the
definitions of “transfer” and “distribute” with respect to the instructions on count III,
indicates that the jury improperly construed this action as distribution of the drug.
We are not persuaded by Armstrong’s contention that the jury’s verdict in his
case was actually inconsistent. The conduct charged in count III, and the evidence
presented at trial to prove the government’s case, differed materially from the conduct
charged in counts I and II. Most obviously, the drug quantity charged in count III was
significantly larger. We have held that the possession of large drug quantities alone
may evidence an intent to distribute. United States v. Ojeda, 23 F.3d 1473, 1476 (8th
Cir. 1994); see United States v. Lopez, 42 F.3d 463, 467 (8th Cir. 1994) (discussing
the principle that possession of quantities greater than user quantities indicates intent
to distribute). In addition, Armstrong had a cellular telephone and .32 caliber handgun2

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possession of such an instrument has any significant probative value with respect to the
element of intent to distribute drugs.
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in his possession upon his third arrest, and the methamphetamine was packaged
differently than that seized in the first two arrests. Thus, given the material differences
in the evidence presented to prove count III and that presented to prove counts I and
II, the jury’s verdict does not necessarily reflect an inconsistency in its reasoning.
Even if the verdicts were inconsistent, however, reversal would still be
inappropriate because there was sufficient evidence to support the verdict on count III.
“Inconsistent verdicts are not, on their own, sufficient grounds for reversal or a new
trial. A jury may acquit a defendant as to one or more charges for any number of
reasons . . . and yet come to the reasonable conclusion that the defendant was guilty of
other related charges. ” United States v. Whatley, 133 F.3d 601, 606 (8th Cir. 1998)
(citations omitted); see United States v. Powell, 469 U.S. 57, 64-65 (1984)
(inconsistent verdicts are not grounds for a new trial because “it is unclear whose ox
has been gored”). “The only relevant question when reconciling inconsistent verdicts
. . . is whether there was enough evidence presented to support the conviction.”
Whatley, 133 F.3d at 606 (citations omitted). “Sufficiency-of-the-evidence review is
independent of the jury’s determination that evidence on other counts was insufficient
. . . . ‘[W]e examine the evidence in the light most favorable to the verdict, giving the
government the benefit of all reasonable inferences that may logically be drawn from
the evidence.’” United States v. Suppenbach, 1 F.3d 679, 681-82 (8th Cir. 1993)
(quoting United States v. Fuller, 942 F.2d 454, 458 (8th Cir. 1991)). Reversal is
appropriate only where a reasonable jury could not have found all the elements of the
offense beyond a reasonable doubt. Id. To make its case for possession with intent to
distribute methamphetamine, the government was required to prove both that
Armstrong knowingly possessed methamphetamine, which he does not contest, and that
he intended to distribute it. See Ojeda, 23 F.3d at 1475.

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The evidence previously discussed, in addition to the testimony of a police expert
that non-selling methamphetamine users do not purchase even as much as an ounce of
the substance at one time, was sufficient to support Armstrong’s conviction,
notwithstanding Armstrong’s assertion that the testimony of four self-described
methamphetamine addicts that a serious addict might purchase and use large quantities
of methamphetamine rebutted the police expert’s testimony. It was for the jury to
determine the credibility of the witnesses. See United States v. McMasters, 90 F.3d
1394, 1400-01 (8th Cir. 1996). Even if the jury accepted Armstrong’s contention about
the enormity of his drug use, the fact that he was a heavy drug user in no way precluded
a finding that he also was, or aspired to be, a drug dealer. To the contrary, the police
expert testified that methamphetamine dealers are generally users of the drug as well.
Accordingly, we conclude that the evidence was sufficient to support the guilty verdict
on count III.
The judgment is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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