CALVIN BLACK, PETITIONER V. UNITED STATES OF AMERICA No. 90-5804 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1a-1q) is reported at 904 F.2d 1026. JURISDICTION The judgment of the court of appeals was entered on May 25, 1990. Pet. App. 1a. A petition for rehearing was denied on June 25, 1990. Pet. App. 2. The petition for a writ of certiorari was filed on September 24, 1990 (a Monday). The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether, in a trial in which petitioner was convicted of possessing, and aiding and abetting the possession of, 17.8 grams of cocaine base with intent to distribute it, the district court properly denied his request for an instruction on the lesser included offense of simple possession. STATEMENT Following a jury trial in the United States District Court for the Western District of Tennessee, petitioner was convicted of possessing, and aiding and abetting the possession of, cocaine base ("crack") with intent to distribute it, in violation of 21 U.S.C. 841(a)(1). He was sentenced to 120 months' imprisonment and a four-year term of supervised release. 1. The evidence showed that, in response to an informant's tip, police officers in Memphis, Tennessee stopped a car to investigate reported drug activity. As the officers walked toward the car, the front-seat passenger opened his door and got out. At that time, the officers saw the back-seat passenger make a throwing motion toward the open front-passenger door. Petitioner, the driver, made a throwing motion toward the floor of the car. Outside the open front-passenger door, the officers found a plastic bag containing 74 rocks of crack cocaine weighing 15.4 grams. On the floor of the driver's side of the car, they found ten rocks of the drug, which weighed 2.5 grams. Gov't C.A. Br. 2-3; Tr. 19-24, 43-48, 70-83. Petitioner and the back-seat passenger were subsequently charged with possession of the crack cocaine with intent to distribute it. /1/ 2. At trial, petitioner requested the district court to instruct the jury on the lesser included offense of simple possession, on the theory that "there are two different portions of drugs. One is fairly large. The other is small." Tr. 180. The district court agreed to give the requested instruction if the jury returned a verdict of not guilty on the charged count, Tr. 178-182, but it refused to instruct the jury on the lesser-included offense of simple possession before then, explaining that the instruction was not intended to "give the jury an option of going one way or the other particularly if they disregard the proof." Tr. 180. 3. The court of appeals affirmed. Relying on Hopper v. Evans, 456 U.S. 605 (1982), the court agreed with the district court that there was no evidence produced at trial that would have allowed a rational trier of fact to determine that out of the three occupants of the car, Levy and Black each possessed a separate unit. Moreover, there was no evidence that would have permitted a rational trier of fact to determine which unit each defendant possessed. Pet. App. 1g. ARGUMENT Petitioner renews his contention (Pet. 4-5) that he was entitled to an instruction on the lesser included offense of simple possession. 1. Significantly, the district court did not refuse to give an instruction on the lesser included offense of simple possession. The court decided, instead, that it would wait to instruct on the lesser included offense until the jury returned with a verdict on the charged count. Although counsel for petitioner said he was "not sure about that procedure," see Tr. 179, he did not object further when the judge explained that the procedure had advantages for both sides depending on the strength of the evidence. Apparently satisfied with the procedure, petitioner's lawyer did not renew his request when the judge again discussed the lesser included offense charge at the close of the evidence, Tr. 224, or when the judge called for objections to the charge and asked the lawyers if they wished to have any supplemental instructions given, Tr. 288. Having failed to object to the court's proposed procedure for handling the lesser-included-offense instruction, petitioner waived that claim and may not seek reversal on that ground. See Fed. R. Crim. P. 30. 2. In any event, petitioner was not entitled to the instruction he requested. In Hopper v. Evans, 456 U.S. 605 (1982), this Court stated that "a lesser included offense instruction should be given 'if the evidence would permit a jury rationally to find (a defendant) guilty of the lesser offense and acquit him of the greater.'" Id. at 612 (quoting Keeble v. United States, 412 U.S. 205, 208 (1973)). The Court made clear that due process requires a lesser included offense instruction to be given "only when the evidence warrants such an instruction." Hopper, 456 U.S. at 611 (emphasis in original). The court of appeals correctly concluded that the evidence at trial did not warrant giving the instruction. Petitioner does not claim that the evidence was insufficient to convict him of possession of crack cocaine with intent to distribute it, or that possession of 17.8 grams of crack cocaine is consistent with personal use warranting a charge of simple possession. Nor does he claim that, as the driver of the car, he lacked dominion and control over part of its interior. He claims only (Pet. 5) that, if given the chance, the jury might have found that he possessed only the 2.5 grams of cocaine found on the car floor, and that that portion was small enough to have been intended for his personal use rather than for distribution. That theory, however, is at odds with his defense at trial. There, petitioner argued that the cocaine on the floor belonged to the front-seat passenger, and not to him. See Tr. 129-132, 157-158, 166, 249-254. He argued that the crack found outside the car belonged only to the back-seat passenger. Tr. 255. Because petitioner offered a "purely exculpatory" theory that, if believed by the jury, would have led only to acquittal, he was not entitled to an instruction on a lesser included offense. See, e.g., United States v. Thornton, 746 F.2d 39, 47 (D.C. Cir. 1984). /2/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General VICKI S. MARANI Attorney DECEMBER 1990 /1/ The back-seat passenger was convicted together with petitioner, and his conviction was affirmed. The front-seat passenger was a juvenile; he was convicted in the juvenile court system of possessing cocaine with intent to distribute it. /2/ It is true, as petitioner states, that simple possession is a "prototypical 'lesser included offense'" of possession with intent to distribute. See Pet. 4 (quoting United States v. Burns, 624 F.2d 95, 104 (10th Cir. 1980)). But that is not enough to warrant a lesser-included offense instruction. In order to be entitled to a jury instruction on a lesser included offense, a defendant must demonstrate both that the offense he seeks to have the jury instructed on is "lesser included," and that, in light of the way the case was presented at trial, the jury could reasonably find him guilty of the lesser charge but not guilty of the greater. See Schmuck v. United States, 109 S. Ct. 1443, 1450 & n.8 (1989). The court of appeals found that petitioner was not entitled to a jury instruction on simple possession because he had failed to satisfy the later requirement, not the former.