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United States v. Waugh

United States Court of Appeals, Tenth Circuit

December 17, 2019

NOWLIN LEE WAUGH, JR., Defendant-Appellant.

          Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 6:18-CR-00038-RAW-1)

          Christopher Wilson, Assistant United States Attorney (Brian J. Kuester, United States Attorney; Linda A. Epperley, Assistant United States Attorney, with him on the brief), Muskogee, Oklahoma, for Plaintiff - Appellee.

          Dean Sanderford, Office of the Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, Colorado, for Defendant - Appellant.

          Before CARSON, BALDOCK, and EBEL, Circuit Judges.


         On March 23, 2018, Defendant Nowlin Lee Waugh, Jr. was driving on Interstate 40 in Eastern Oklahoma when Oklahoma Highway Patrol Trooper Aaron Lockney observed his vehicle cross over the fog line. Believing the driver was fatigued, texting, or under the influence of drugs or alcohol, Trooper Lockney initiated a traffic stop. Trooper Lockney activated his emergency lights, but Defendant refused to yield and continued eastbound on Interstate 40. Trooper Lockney observed Defendant moving erratically and reaching into the backseat area of the vehicle. Trooper Lockney also observed Defendant throwing items out of the driver's side window.

         After following Defendant for approximately 10 miles, Trooper Lockney performed a "tactical vehicle intervention," ramming Defendant's vehicle and bringing it to a stop. Trooper Lockney identified Defendant as the driver and sole occupant of the vehicle. Inside the vehicle, Trooper Lockney and other officers found two trashcans, four gallon-size bottles of bleach, shards of suspected methamphetamine strewn about the vehicle, six kilo-sized vacuum-sealed bags that had been ripped open, two or three gallon-sized Ziploc bags, and some shrink wrap. The interior of the vehicle was wet in places and smelled strongly of bleach. One of the trash cans contained bleach and shards of suspected methamphetamine. The troopers believed Defendant used the bleach to destroy large quantities of methamphetamine during the ten-mile police chase. The troopers recovered the largest shards of suspected methamphetamine for testing. The suspected methamphetamine was subsequently weighed at 54.19 grams of methamphetamine with a 93% purity rate.

         Thereafter, Defendant was charged with possession with intent to distribute 50 or more grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). Defendant proceeded to trial and argued that, although he possessed methamphetamine, he did not intend to distribute it. Defendant introduced no evidence he was a user of methamphetamine but, during opening and closing statements, defense counsel argued the Government could not prove Defendant possessed the requisite intent to distribute. In furtherance of this defense, Defendant asked the district court to instruct the jury on the lesser included offense of simple possession. The district court denied Defendant's request, and the jury returned a guilty verdict. Defendant appeals, arguing the district court erred in refusing to give the lesser included instruction on mere possession. Exercising jurisdiction under 28 U.S.C. §.1291, we affirm.


         A defendant is entitled to an instruction on a lesser included offense if the evidence would permit a rational jury to convict the defendant of the lesser offense and acquit him of the greater. United States v. Pacheco, 884 F.3d 1031, 1047 (10th Cir. 2018). This rule recognizes "where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offenses, the jury is likely to resolve its doubts in favor of conviction." Id. (quoting Keeble v. United States, 412 U.S. 205, 212-13 (1973)). Thus, "if there is evidence to support a lesser included offense and defendant requests such a charge, the court has no discretion to refuse to give the instruction." Pacheco, 884 F.3d at 1047 (quoting United States v. Bruce, 458 F.3d 1157, 1162 (10th Cir. 2006)). To warrant an instruction on a lesser included offense, the defendant must establish: (1) he properly requested the instruction; (2) the elements of the lesser offense are included in the elements of the greater offense; (3) the element differentiating the two offenses is in dispute; and (4) the jury is able to rationally acquit the defendant of the greater offense and convict on the lesser offense. Id.

         In this case, the parties agree the first three requirements are met. Therefore, at issue is whether the jury would have been able to rationally acquit Defendant of possession with intent to distribute and instead convict him on simple possession. The district court found there was no evidence of personal use and substantial evidence of distribution. Accordingly, the district court held an instruction on the lesser included offense of simple possession was not warranted.

         We review the district court's decision for an abuse of discretion. Id. An abuse of discretion is defined as "judicial action which is arbitrary, capricious, or whimsical" or judicial action based upon "manifestly unreasonable judgment, prejudice, bias, or ill will which is ascertainable from the record." Id. (quoting Pelican Prod. Corp. v. Marino, 893 F.2d 1143, 1146 (10th Cir. 1990)).

         * * *

         Upon review, we conclude the district court did not abuse its discretion in declining to give an instruction on simple possession. Based on the quality and quantity of the methamphetamine recovered, as well as the circumstances surrounding the recovery of the methamphetamine, no rational jury ...

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