GARWOOD, Circuit Judge:
Mario Prieto-Tejas appeals his conviction for possession of cocaine with intent to distribute in violation of 21 U.S.C.
Facts and Proceedings Below
On October 7, 1984, Border Patrol Officer Michael Jackson stopped Mario Prieto-Tejas and Guillermo Dusal at the Sierra Blanca traffic checkpoint on Highway I-10 in Hudspeth County, in far west Texas. Dusal was driving a 1978 Oldsmobile and Prieto-Tejas, who owned the automobile, was riding in the front passenger seat. When Jackson approached the vehicle, he noticed that both men were wearing an "excessive" amount of gold jewelry. As Jackson questioned the men about their citizenship, he smelled burning marijuana and observed several partially burned marijuana cigarettes in the car's ashtray. Jackson then directed the vehicle to a secondary inspection area.
At the secondary inspection point, Jackson asked Dusal and Prieto-Tejas to step out of the vehicle and continued questioning them about their citizenship. Both men informed Jackson that they were from Cuba. Dusal stated that he had no identification; Prieto-Tejas produced an I-94 immigration form. Jackson then searched the vehicle. He observed that the lower right door panel was loose; when he pulled it open, a small plastic bag of cocaine fell to the floorboard. At that point, Jackson took Dusal and Prieto-Tejas to a holding cell in the checkpoint trailer. He then resumed his search of the vehicle. He found a small bag of marijuana in the glove compartment,
Drug Enforcement Administration (DEA) Agent Larry Nichols arrived at the checkpoint and interviewed Dusal and Prieto-Tejas. Dusal told Nichols that he lived in San Antonio, but had traveled to California several weeks earlier and had worked there as a waiter. Prieto-Tejas said that he worked as a dishwasher in Los Angeles and bought and sold gold jewelry. Dusal informed Nichols that Prieto-Tejas had purchased the car in California and, because he was unable to drive, had elicited Dusal's help to drive to San Antonio. Prieto-Tejas testified at trial that he paid $2,250 in cash for the vehicle in Los Angeles on October 2, 1984. Because Dusal wished to return to San Antonio, he agreed to drive for Prieto-Tejas. When questioned at the checkpoint, Prieto-Tejas told Nichols that the cocaine belonged to him, but denied knowledge of the gun. Dusal admitted ownership of the gun, but said he had placed it in the back seat of the car and suspected that Prieto-Tejas had moved it to the front armrest. He also stated that the cocaine belonged to Prieto-Tejas and that he had seen him use it during the journey.
Chemical analysis of the substance seized at the checkpoint revealed that the smaller bag held 2.89 grams of 73 percent pure cocaine and that the larger bag found in the armrest contained 27.79 grams of 82 percent pure cocaine. The residue found on the counterbalance metric scale also was identified as cocaine. At trial, DEA Agent Nichols testified that the street value of an ounce of cocaine (approximately twenty-eight grams) ranges from $2,200 to $2,500, especially when bought in bulk. He said that the current price per gram on the street is about $78 to $100. He further explained that the average purity of cocaine found on the street is 25 percent. Therefore, an ounce of 84 percent cocaine could be diluted and sold as three ounces
Dusal and Prieto-Tejas were indicted and were convicted by a jury on all three counts. Both were sentenced to two concurrent five-year prison terms for the narcotics violations, and one five-year term for the firearms count, which was to run consecutively to the other sentences. Prieto-Tejas timely filed this appeal.
Standard of Review
Prieto-Tejas challenges the sufficiency of the evidence underlying each conviction.
Possession with Intent to Distribute
A conviction for possession of a controlled substance in violation of 21 U.S.C. § 841(a)(1)
Intent to distribute a controlled substance may generally be inferred solely from possession of a large amount of the substance. United States v. Goldstein, 635 F.2d 356, 362 (5th Cir.), cert. denied, 452 U.S. 962, 101 S.Ct. 3111, 69 L.Ed.2d 972 (1981); United States v. Grayson, 625 F.2d 66, 66 (5th Cir.1980). The purity and value of the substance also are relevant to the possessor's intent to distribute. United States v. Ledezma-Hernandez, 729 F.2d 310, 313 (5th Cir.1984); United States v. Gonzalez, 700 F.2d 196, 204 (5th Cir.1983). A quantity of narcotics too large to be used by the possessor alone "justifies the conclusion that possession was for distribution rather than personal consumption." United States v. Mendoza, 722 F.2d 96, 103 (5th Cir.1983).
The bags contained 27.79 grams of 82 percent pure cocaine and 2.89 grams of 73 percent pure cocaine. In total, the cocaine was worth between $2,200 and $9,000, depending on whether it was diluted before sale. The evidence suggested that this cocaine was of a purity usually diluted for distribution. A reasonable trier of fact could conclude that Prieto-Tejas intended the cocaine for distribution. See United States v. Compton, 704 F.2d 739, 742 (5th Cir.1983) (finding approximately thirty-three grams of cocaine — one bag of 82 percent and another of 83 percent purity — plus smaller bags of lesser purity to be
Prieto-Tejas testified that he was addicted to cocaine and that at the time of his arrest he had been using up to three or four grams a day for several months. He stated that he consumed thirty grams about every ten days when he was able to obtain it. He suggested that he consumed one to one and a half ounces at the least each month. He stated at trial that he had paid $1,200 for the approximately thirty grams of cocaine found in his car by the Border Patrol Agent. He also recounted that he had paid $2,250 in cash for the car five days before the trip. Prieto-Tejas further testified that he made $130 to $160 a week as a dishwasher. His testimony concerning his income from trading gold jewelry was somewhat uncertain and conflicting, but suggested that he made between $3,000 and $12,000 a year. Construed most favorably to him, his testimony would indicate that his total income was at the most $2,000 per month. But the jury could conclude from this evidence that he made less than half this amount.
A reasonable trier of fact could conclude that Prieto-Tejas intended to sell the cocaine based on one of two inferences. Prieto-Tejas accounts for possession of a large amount of cocaine by claiming to have a large habit. But such a habit would cost him at the very least $1,000 to $2,000 a month.
The metric scale found in Prieto-Tejas's possession provides some further evidence of an intent to distribute cocaine. The scale had traces of cocaine in the weighing pans and the DEA agent testified that scales of this type are commonly used by those who sell cocaine, but not often by purchasers. The presence of the scale in addition to the quality and quantity of the cocaine and Prieto-Tejas's testimony concerning his cocaine use support a finding of his intent to distribute. Viewing the evidence in the light most favorable to the government, we conclude that a reasonable trier of fact could have found Prieto-Tejas guilty beyond a reasonable doubt of possession with intent to distribute.
Conspiracy to Possess with Intent to Distribute
Prieto-Tejas further contends that the evidence is insufficient to support his conviction for conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1), 846.
We find that the government has presented sufficient evidence to convict Prieto-Tejas of conspiracy to possess cocaine with intent to distribute. Dusal and Prieto-Tejas became acquainted in California several weeks before their journey. They entered into an agreement to travel together to San Antonio. Prieto-Tejas purchased a car and Dusal agreed to drive. Both men were aware of the large amount of cocaine that they carried on the trip. Possession of a narcotic may be actual or constructive, may be joint with others, and may be proved by circumstantial evidence. United States v. Cardenas, 748 F.2d 1015, 1019 (5th Cir.1984). Dusal may be deemed to have been in constructive possession of the cocaine, which he knew of, because such possession may be proved when one "has dominion over or controls the premises or vehicle where contraband is seized." United States v. Niver, 689 F.2d 520, 529 (5th Cir.1982). In addition, for both Prieto-Tejas and Dusal the intent to distribute may be inferred from the quantity and quality of the cocaine in their possession and from possession of a scale of a type commonly used in the distribution of narcotics. Furthermore, both men were wearing a large amount of gold jewelry, although neither had a significant source of income.
The evidence was sufficient for a reasonable factfinder to infer a tacit agreement between Dusal and Prieto-Tejas and their knowledge, intent to join, and participation in the agreement. The evidence demonstrates more than Dusal's mere presence or close association with Prieto-Tejas. The two men clearly acted in concert in transporting a significant amount of cocaine. The evidence need not lead inexorably to the conclusion of a conspiracy; it is sufficient that a reasonable trier of fact could find beyond a reasonable doubt that Prieto-Tejas and Dusal conspired together to possess cocaine with intent to distribute.
Unlawful Possession of a Firearm During Commission of a Felony
Prieto-Tejas also challenges his conviction for carrying a firearm unlawfully during the commission of a felony in violation of 18 U.S.C. § 924(c)(2).
The government's sole theory in this respect was that Prieto-Tejas carried a handgun in violation of Texas Penal Code Ann. § 46.02(a) (Vernon 1974).
In addition to those defenses expressly enumerated in section 46.03, there are several judicially created defenses, which are rooted in but expand up the statutory defenses. Inzer v. State, 601 S.W.2d 367, 368 (Tex.Crim.App.1980). A defendant raising a judicially created defense must show that his purpose in carrying the handgun is not unlawful.
Both the government and Prieto-Tejas presented evidence that Prieto-Tejas was traveling from Los Angeles to San Antonio when carrying the handgun. At least once Prieto-Tejas's evidence demonstrated the applicability of the statutory exemption, the issue was raised.
Moreover, the jury was never instructed that possession of a handgun violated Texas (or any) law; nor did the government argue to the jury that Prieto-Tejas carried a handgun in violation of Texas law. The jury was instructed that the government must prove "that the defendant carried a firearm unlawfully during the commission of a felony." The court defined "unlawfully" to mean "the carrying of a gun which is prohibited by any law, be it a state law, a federal statute or a municipal ordinance." There was no instruction concerning section 46.02 or section 46.03 of the Texas Penal Code. Without any guidance or instruction concerning the applicable law, the jury could not possibly determine whether Prieto-Tejas unlawfully carried a gun.
During the trial, the defendant failed to object to the jury instructions or to submit a proper instruction concerning the lawfulness of the handgun possession. Nevertheless, under this record, the district court's failure to properly define "unlawfully" constitutes plain error. United States v. Nanez, 694 F.2d 405, 411 (5th Cir.1982), cert. denied, 461 U.S. 909, 103 S.Ct. 1884, 76 L.Ed.2d 813 (1983).
Having considered all the evidence in the light most favorable to the government, we affirm Prieto-Tejas's convictions for possession of cocaine with intent to distribute and for conspiring to possess cocaine with intent to distribute. The evidence does not establish that Prieto-Tejas unlawfully carried a firearm during the commission of a felony; and in light of the evidence, the court's instructions were wholly insufficient on this count. Accordingly, we reverse the conviction on this single count and direct that the prosecution thereon be dismissed.
AFFIRMED in part and REVERSED in part.
Cocaine is a Schedule II controlled substance under 21 U.S.C. § 812. United States v. Berrojo, 628 F.2d 368, 370 (5th Cir.1980); Government of the Canal Zone v. Davis, 592 F.2d 887, 890 (5th Cir.1979).
For the text of 21 U.S.C. § 841(a)(1), see supra note 3.
Congress has amended this statute, effective November 1, 1986, to provide that whoever carries or uses a firearm in relation to any crime of violence shall be sentenced to imprisonment for five years. Pub.L. No. 98-473, §§ 223(a), 225, 98 Stat. 2028, 2031 (1984) (to be codified at 18 U.S.C. § 924(c)).
See also Comment, A Farewell to Arms? — An Analysis of Texas Handgun Control Law, 13 St. Mary's L.J. 601, 607 (1982).