United States of America v. William L. Lawson, Appellant, 948 F.2d 782 (D.C. Cir. 1991)

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US Court of Appeals for the District of Columbia Circuit - 948 F.2d 782 (D.C. Cir. 1991) Nov. 22, 1991

Before MIKVA, Chief Judge, and SILBERMAN and RANDOLPH, Circuit Judges.


JUDGMENT

PER CURIAM

This case was considered on appeal from the United States District Court for the District of Columbia and on the briefs filed by the parties and arguments by counsel. The arguments have been accorded full consideration by the court and occasion no need for a published opinion. See D.C. Cir. Rule 14(c).

A jury convicted appellant for distributing cocaine powder in violation of 21 U.S.C. § 841(a) (1) and for possessing with the intent to distribute cocaine powder in violation of 21 U.S.C. § 841(b) (1) (C).

Appellant contends that the evidence was insufficient to support his conviction because the government failed to prove that he distributed or possessed a usable amount of cocaine. Although several states and the District of Columbia require the government to prove "usability" as an element of state and District drug offenses, federal drug laws contain no corresponding requirement. As the Seventh Circuit recently put it: "Quantity is not a substantive element of [the federal drug possession and distribution] offense. Any measurable amount will do." United States v. Whitley, 905 F.2d 163, 165 (7th Cir. 1990); accord United States v. Clark, 928 F.2d 733, 736 (6th Cir. 1991) (per curiam) ; United States v. Luster, 896 F.2d 1122, 1126 (8th Cir. 1990); United States v. Harold, 588 F.2d 1136, 1143 (5th Cir. 1979); United States v. Picklesimer, 585 F.2d 1199, 1201-03 (2d Cir. 1978); United States v. Eddy, 549 F.2d 108, 111 (9th Cir. 1976). Beyond doubt, the government introduced sufficient evidence from which a reasonable jury could have concluded that appellant distributed and possessed with intent to distribute a measurable amount of cocaine powder.

As appellant concedes, his second claim--that the District Court erred in failing to instruct the jury on the lesser included offense of simple possession--hinges on his first. Having rejected the first claim, we may reject appellant's second claim without further discussion.

Accordingly, it is ORDERED and ADJUDGED that the judgment of conviction from which this appeal was taken is AFFIRMED.

The clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C. Cir. Rule 15.