Appeal from the United States District Court for the District of Delaware (D.C. Criminal No. 01-cr-00037) District Judge: Honorable Joseph J. Farnan, Jr.
The opinion of the court was delivered by: Rendell, Circuit Judge.
Before: RENDELL and AMBRO, Circuit Judges, and SHAPIRO, District Judge*fn1
Defendant Michael Lacy was charged with possession with intent to distribute five grams or more of a substance containing a detectable amount of cocaine base, or crack cocaine, in violation of 21 U.S.C. § 841(a) and (b). A jury acquitted him of the charged offense, but convicted him of two lesser included offenses, simple possession of more than five grams of cocaine base, in violation of 21 U.S.C. § 844, and possession with intent to distribute an unspecified amount of cocaine base, in violation of 21 U.S.C. § 841(a)(1).
On appeal, Lacy asks us to vacate his simple possession conviction, raising several claims to the effect that his conviction on more than one lesser included offense arising out of the same charge was improper. We conclude that none of Lacy's claims provides a proper basis for reversal. Accordingly, we will affirm.
Michael Lacy was arrested by the Wilmington, Delaware Police on June 19, 2001, in a Wilmington apartment. The police recovered from his pocket a small plastic bag that contained several individually wrapped small chunks, weighing 1.85 grams, of a white substance that was later determined to be a mixture containing cocaine base, or crack cocaine. They seized two more plastic bags from the bathroom of the apartment. One contained a large chunk of the substance, weighing 3.24 grams, and the other contained several more individually wrapped smaller chunks, weighing a total of 1.66 grams. Thus, the police recovered a total of 6.75 grams of crack cocaine on Lacy's person and in the bathroom.
Lacy was charged, in an indictment, with possessing with intent to distribute five grams or more of a mixture or substance containing cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b). Before trial, the government asked the District Court to include three lesser included offenses in the jury charge and on the verdict form. Lacy objected, contending that drug type and quantity are not elements of the offense, but are, instead, "sentencing factors" under 21 U.S.C. § 841. The District Court disagreed with Lacy, and, accordingly, instructed the jury orally, and in a written verdict form, that if the jury found that Lacy was not guilty of the indicted offense, it could consider whether he was guilty of (1) possession with intent to distribute an unspecified amount of cocaine base in violation of 21 U.S.C. § 841(a)(1), and (2) simple possession of more than five grams of cocaine base, in violation of 21 U.S.C. § 844. If the jury found Lacy not guilty of both of these offenses, it was instructed to consider whether he was guilty of a third alternative offense, simple possession of an unspecified amount of cocaine base. The jury found Lacy not guilty of possession with intent to distribute five grams of cocaine base, but found him guilty of both possession with intent to distribute an unspecified amount of cocaine base and simple possession of more than five grams of cocaine base.
After trial, Lacy moved for judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(c), arguing that the evidence did not support verdicts on both lesser included offenses, that the jury verdict violated double jeopardy principles and that simple possession of cocaine base is not a lesser included offense of a section 841(a) charge for possession with intent to distribute. The District Court denied the motion. Lacy now appeals.
Our jurisdiction to consider Lacy's appeal from the District Court's final order of conviction arises under 18 U.S.C. § 1291. We exercise plenary review over an appeal from the grant or denial of a motion for judgment of acquittal, applying the same standard as the district court to the individual claims. United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005). Thus, we must view the evidence in the light most favorable to the verdict, and must presume that the jury has properly carried out its functions of evaluating credibility of witnesses, finding the facts, and drawing justifiable inferences. A verdict will be overruled only if no reasonable juror could accept the evidence as sufficient to support the conclusion of the defendant's guilt beyond a reasonable doubt.
United States v. Coleman, 811 F.2d 804, 807 (3d Cir. 1987) (quoting United States v. Campbell, 702 F.2d 262, 264 (D.C. Cir. 1983)).
Lacy urges us to overturn his simple possession conviction, arguing (1) that the Federal Rules of Criminal Procedure do not permit conviction for more than one lesser included offense arising out of a single charged offense, (2) that simple possession is not a lesser included offense of possession with intent to distribute, (3) that his convictions violate the Double Jeopardy Clause of the Constitution and (4) that the evidence presented was insufficient to support his ...