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08-1655-cr
USA v. Previous DocumentBaxter
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to
summary orders
filed after January 1, 2007, is permitted and is governed by this court’s
Local Rule 32.1 and
Federal Rule of Appellate Procedure 32.1. In a brief or other paper in
which a litigant cites a
summary order, in each paragraph in which a citation appears, at least one
citation must either
be to the Federal Appendix or be accompanied by the notation: “(summary
order).” A party
citing a summary order must serve a copy of that summary order together
with the paper in
which the summary order is cited on any party not represented by counsel
unless the summary
order is available in an electronic database which is publicly accessible
without payment of fee
(such as the database available at http://www.ca2.uscourts.gov/). If no
copy is served by
reason of the availability of the order on such a database, the citation
must include reference
to that database and the docket number of the case in which the order was
entered.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in
the City of New
York, on the seventeenth day of December two thousand and eight.
PRESENT:
WILFRED FEINBERG,
JOSÉ A. CABRANES,
RICHARD C. WESLEY,
Circuit Judges.
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UNITED STATES OF AMERICA,
Appellee,
v.
CLYDE BAXTER,
Defendant-Appellant.
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No. 08-1655-cr
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FOR DEFENDANT-APPELLANT:
FOR APPELLEE:
FRANK J. RICCIO II (Frank J. Riccio, of counsel),
Bridgeport, CT.
HAROLD H. CHEN, Assistant United States
Attorney (Nora R. Dannehy, United States
Attorney, on the brief, William J. Nardini,
Assistant United States Attorney, of counsel),
Office of the United States Attorney for the
District of Connecticut, New Haven, CT.
Appeal from a judgment of the United States District Court for the
District of Connecticut
(Stefan R. Underhill, Judge).
UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.
Defendant Clyde Baxter appeals from an April 3, 2008 judgment of the
District Court,
convicting Previous Hithim, afterNext Hit a jury trial, of possession with intent to
distribute and distribution of cocaine
base, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). The
District Court sentenced Baxter
principally to a term of 120 months in prison. Previous HitOn appeal, Baxter makes two
central arguments:
(1) that the District Court erred in instructing the jury that Baxter had
to know he possessed a
“controlled substance” without specifying that the controlled substance
had to be cocaine base, and
(2) that the evidence was insufficient to support his conviction. We
assume the parties’ familiarity
with the factual and procedural history of the case.
(1) “We review a claim of error in jury instructions de novo, reversing
only where, viewing the
charge as a whole, there was a prejudicial error.” United States v. Aina-
Marshall, 336 F.3d 167, 170 (2d
Cir. 2003). “A jury instruction is erroneous if it misleads the jury as to
the correct legal standard or
does not adequately inform the jury on the law.” Anderson v. Branen, 17 F.
3d 552, 556 (2d Cir. 1994).
Upon a review of the record, we conclude the jury instruction contained no
error. We have
previously held that “the law is settled that a defendant need not know
the exact nature of a drug in
his possession to violate § 841(a)(1); it is sufficient that he be aware
that he possesses some
controlled substance.” United States v. Morales, 577 F.2d 769, 776 (2d Cir.
1978). More recently, we
reiterated the Morales holding in United States v. King, noting that it is
a “settled principle that a
conviction under § 841 rests squarely on the knowing possession of some
quantity of illegal drugs
(and not the knowledge of type and quantity).” 345 F.3d 149, 152 (2d Cir.
2003) (per curiam).
Accordingly, we find no error in jury instructions that stated that the
government must prove that
Baxter knew that he possessed a controlled substance, and did not
specifically refer to cocaine base
or crack cocaine.
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(2) We have held that a defendant challenging a conviction on
insufficiency-of-the-evidence
Previous Hitgrounds “bearsNext Hit a heavy burden.” United States v. Masotto, 73 F.3d 1233,
1241 (2d Cir. 1996). We
consider the evidence presented at trial in the light most favorable to
the government, and “must
uphold the jury’s verdict if we find that any rational trier of fact could
have found the Previous Hitessential
elementsNext Hit of the crime beyond a reasonable doubt.” United States v.
Hardwick, 523 F.3d 94, 100 (2d
Cir. 2008) (quoting United States v. Lewter, 402 F.3d 319, 321 (2d Cir.
2005)). Furthermore, we have
Previous Hitheld thatNext Hit the testimony of a single accomplice is sufficient to sustain a
conviction so long as the
“testimony is not Previous Hitincredible onNext Hit its face and is capable of establishing
guilt beyond a reasonable
doubt.” United States v. Florez, 447 F.3d 145, 155 (2d Cir. 2006) (quoting
United States v. Parker, 903
F.2d 91, 97 (2d Cir. 1990)).
Upon a review of the record, it is clear that there is sufficient evidence
to sustain Baxter’s
conviction. Baxter’s nephew and co-defendant, Abdul Baxter, testified that
he watched as Baxter
“cooked the cocaine up” into crack. J.A. at 199. Abdul then testified that
he and Baxter packaged
the cocaine base, drove it to a parking lot, at Previous Hitwhich pointNext Hit Baxter
delivered the cocaine base to the
undercover police officer. Id. at 200-06. Additionally, the undercover
police officer testified that
Baxter handed him the packaged cocaine base and that he then paid Baxter $
900 for the drugs. Id.
at 154-55. Accordingly, we conclude that when viewed in the light most
favorable to the
government, a reasonable jury could have found that Baxter knew what he
possessed and distributed
was cocaine base, and Previous Hitthus, thereNext Hit is sufficient evidence to uphold his
conviction.
CONCLUSION
We reject all of defendant’s claims on appeal. Accordingly, the judgment
of the District
Court Previous Hitis AFFIRMED.
FOR THE COURT,
Catherine O’Hagan Wolfe, Clerk of Court
By _______________________________
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