United States v. Nowlin Lee Waugh, Jr. (9th Cir. December 2019)

Drug Offenses/Jury Instructions – Defendant charged with possession of meth with intent to distribute was not entitled to a jury instruction on the lesser included offense of simple possession where the evidence showed that the quantity of meth exceeded the quantity associated with personal use, the meth’s purity suggested that the meth was being used as a cutting agent, and the defendant’s travel indicated possible distribution.

Nowlin Waugh was arrested in Oklahoma after trying to evade a law enforcement officer who sought to pull him over for crossing the fog line. The officer observed Waugh moving around in his car and throwing items out of the window during the chase. Eventually the officer rammed Waugh’s car and brought it to a stop. Inside the car, officers found methamphetamine, bags, trashcans, and other evidence of meth manufacturing.

At trial, Waugh’s counsel argued that he possessed methamphetamine but did not intend to distribute it. He did not present evidence that Waugh was a meth user. After being convicted by a jury for possessing methamphetamine with intent to distribute, Waugh appealed, arguing that the district court erred in not instructing the jury on the lesser included offense of simple possession.

The Court disagreed. While the parties agreed that Waugh had established that he “properly requested the instruction,” that the elements of simple possession were included “in the elements of the greater offense,” and that “the element differentiating the two offenses” was in dispute, the Court held that the district court did not abuse its discretion in finding that the jury would not have been rationally able to “acquit the defendant of the greater offense and convict on the lesser offense.”

The Court agreed that “no rational jury could find the methamphetamine was intended for personal use rather than distribution.” The Court cited a law enforcement agent’s testimony that “a personal use quantity is approximately a quarter gram” and that law enforcement had seized 54 grams from Waugh’s car, equaling 200 single doses, according to the agent. The Court also credited the meth’s purity, 93%, as evidence that the meth was actually intended as a “cutting agent” to create more meth for distribution. There was also evidence that the defendant had rented a car to make a six-hour roundtrip to get the meth, which would be “unlikely” fir mere personal use, and the Court noted that the defendant tried to destroy the methamphetamine while being pulled over, which suggested a “sophisticated” operation.

The Court distinguished this case from its holding in United States v. Burns, where the Court reversed a defendant’s conviction where the trial court failed to instruct the jury on simple possession. The Court noted that the quantity of drugs in this case, including the meth Waugh destroyed, was a higher quantity than in Burns, and there was more evidence presented by the Government in this case regarding the unlikelihood that the meth was for mere personal use.

On Appeal from the Eastern District of Oklahoma

Opinion by Baldock, joined by Carson and Ebel

Click here to read the opinion.

 


Tom Church

Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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