UNITED STATES COURT OF APPEALS For the Fifth Circuit

___________________________

No. 91-1472 ___________________________

UNITED STATES of AMERICA,

Plaintiff-Appellee,

VERSUS

JOHN SENNETT WHITE and JOHN MICHAEL WILSON,

Defendants-Appellants.

___________________________________________________

Appeals from the United States District Court For the Northern District of Texas ____________________________________________________

(September 4, 1992)

Before HILL1, KING and DAVIS, Circuit Judges.

DAVIS, Circuit Judge:

John Sennett White and John Michael Wilson appeal their

convictions on charges of possession with intent to distribute

cocaine and conspiracy to commit the same offense on several

grounds. Both challenge their convictions and Wilson contests his

sentence under the Guidelines. For both defendants, we reverse in

part, affirm in part and remand for entry of a new judgment and for

resentencing.

I.

In the fall of 1989, a federal grand jury in the Southern

District of Texas returned an indictment against Mark Monroe

1 Senior Circuit Judge of the Eleventh Circuit, sitting by designation. Northcutt (Northcutt) charging him with possession of cocaine with

intent to distribute and conspiring to commit the same offense in

violation of

(a)(1) and 846. Northcutt was also

facing state felony drug charges in San Marcos, Texas, as well as

state forfeiture proceedings against his property. In January of

1990, Northcutt agreed to cooperate with the Drug Enforcement

Administration (DEA) and identified several targets for federal

prosecution. One of those targets is a defendant in this case,

John Michael Wilson (Wilson). Wilson was a criminal defense

attorney practicing in Dallas who handled mostly drug cases.

At an initial unrecorded meeting, Northcutt met with Wilson at

Wilson's office in Dallas. Northcutt asked Wilson to defend him in

the cases described above. According to Northcutt, Wilson quizzed

him about the extent and profitability of his drug distribution

business. Northcutt met a second time with Wilson in Houston on

February 27, 1990. In this meeting, which was tape recorded,

Northcutt told Wilson that he wanted to hire him but didn't have

any cash. Northcutt told Wilson that he had twenty-one kilograms

of cocaine stored in a mini-warehouse and asked Wilson for an

introduction to one of his clients who might be interested in

purchasing the cocaine. Wilson responded that if he furnished such

an introduction, he would be implicated in the conspiracy which he

did not want to do. Wilson agreed, however, to consider the

proposal. John Sennett White (White), who was both Wilson's client

and personal cocaine supplier, left at least nine telephone

messages for Wilson during the week following this meeting.

The next contact with Wilson occurred when Wilson called

2 Northcutt on March 8, 1990. Wilson told Northcutt that he had

"somebody in Dallas that might be interested" in the cocaine.

Later the same day, Wilson and Northcutt discussed over the phone

whether the cocaine transfer should be made in Dallas, Houston

(where Northcutt was) or somewhere between the two cities. Wilson

mentioned "his man" in relation to the transaction. Wilson was

agreed to travel to Houston on Saturday, March 10, 1990 to make the

exchange, but did not show up.

Over the next seven days, Wilson and Northcutt had numerous

tape-recorded phone conversations which culminated in Wilson's

agreement to represent Northcutt in exchange for the cocaine.

According to Northcutt, Wilson agreed to represent him in return

for the twenty-one kilos of cocaine. Wilson testified that he

thought he had agreed to represent Northcutt in return for one kilo

of cocaine and $100,000. Wilson had several more telephone

conversations with Northcutt attempting to arrange a time and place

to transfer the cocaine.

On March 18, Wilson and Northcutt met for about one hour in

Wilson's office in Dallas. No tape recording was made of this

meeting. Northcutt testified that they discussed the amount of

cocaine Wilson's "man" could move a week and the price they

expected to obtain for it. According to Northcutt, Wilson told him

that ten kilos would pay Wilson for his services in defending

Northcutt in the federal charges and the remainder would compensate

Wilson for defending the state charges. Northcutt agreed to go to

Houston, pick up the cocaine and deliver it to Dallas in a single

suitcase as soon as possible. During the days immediately before

3 this meeting, White left several messages with Wilson's message

service.

On Tuesday, March 20, 1990, Northcutt returned to Dallas with

the cocaine. He went to Wilson's office around 7 p.m. and gave

Wilson the key to Room 909 of the Holiday Inn on Central

Expressway. In a recorded conversation, Northcutt told Wilson that

the cocaine was stored in an expensive Halliburton case that he

wanted back. Northcutt also told Wilson that Wilson and "his man"

would be impressed with the quality and purity of the drug. Wilson

said that he would go right over to complete the pick up. After

Northcutt left, Wilson called White and arranged to meet him at the

Holiday Inn.

Shortly thereafter, White and Wilson arrived at the Holiday

Inn in separate cars. The two spoke briefly and entered the hotel.

The DEA, which had already set up a surveillance of Room 909,

videotaped the activity in the room. White and Wilson entered the

room, turned off the lights and turned up the volume on the

television. They explored the room, Wilson peered behind a picture

and White covered the smoke detector with a towel. These actions

were taken in an obvious attempt to avoid surveillance. They paced

the room and then each walked over to the suitcase and lifted it as

if to check its weight.

Finally, after about ten minutes, White placed the suitcase on

the bed and opened it. He counted the kilos as Wilson observed.

White then rearranged the cocaine, closed the suitcase and returned

it to the corner of the room. Both men then immediately left the

room, placing a do-not-disturb sign on the door. They talked

4 briefly by their vehicles and left the Holiday Inn. At

approximately 11 p.m. that night, an unidentified female drove

White's car very slowly through the parking lot of the Holiday Inn

several times. White was in the car and appeared to be inspecting

the lot.

A few hours later, Northcutt called Wilson and reminded Wilson

that he wanted to retrieve the bag. Wilson told Northcutt he could

retrieve the bag after 10:30 a.m. the next morning. At

approximately 10 a.m., Wilson arrived at the Holiday Inn. He

proceeded directly to Room 909, entered the room, opened the

suitcase and transferred eleven kilograms of cocaine to a green

canvas bag he was carrying. Wilson closed the suitcase, containing

the remaining ten kilos and returned the suitcase to the corner of

the room. Dallas DEA agents arrested Wilson as he left the room.

A few minutes later, White arrived at the Holiday Inn and

parked next to Wilson's vehicle. White carried a briefcase

containing a canvas bag, similar to Wilson's. As White stepped off

the elevator and proceeded towards Room 909, the DEA arrested him.

At the time of his arrest White did not have a key to the room.

White and Wilson pled not guilty and were tried together

before a jury in January 1991. The court, in its instructions,

gave the jury the option of finding the defendants guilty of the

lesser included offense of simple possession on Count 1, rather

than the charged offense, possession with intent to distribute.

But on Count 2, the court did not give the jury the option of

finding the defendants guilty on the lesser included offense -

conspiracy to possess (rather than the charged offense conspiracy

5 to possess with intent to distribute.)

During their deliberations, the jury sent out a note to the

court which read as follows:

Please clarify if Defendant is found guilty of lesser offense - Count 1 - (possession) is he automatically not guilty on Count 2.

The Court responded:

Members of the jury, in response to your third question, if you have a reasonable doubt about a Defendant's intent to distribute cocaine, you must find the Defendant not guilty of the offense charged in Count 2 of the indictment.

Later that day, the jury sent a message to the court that it

had reached a verdict. The verdict form reflected that the jury

had found both defendants guilty of the lesser included offense of

simple possession on Count 1. The jury made no finding on Count 2.

The verdict was read in open court as to both defendants and a poll

reflected a unanimous verdict. When questioned about the absence

of a verdict on Count 2, the jury foreperson explained that the

jury thought that if they could not reach a verdict on Count 1 as

charged they could not reach a verdict on Count 2.

The jury was excused for the weekend. Wilson and White argued

that the guilty verdict on the lesser included offense on Count 1

precluded a guilty verdict on Count 2 as charged. Alternatively,

they argued that if the court intended to require the jury to

deliberate further on Count 2, it should authorize the jury to

return a verdict on the lesser included offense of conspiracy to

possess cocaine (without intent to distribute). The court denied

both requests. On Tuesday, the jury was instructed to continue

their deliberations on Count 2. After further deliberating, the

jury asked whether they could reconsider their verdict on Count 1.

6 Over the defendants' objections the court told them they could.

The jury then found the defendants guilty on both counts as

charged. White and Wilson appeal. Additional facts necessary to

the discussion of particular issues will be presented in the

discussion that follows.

II.

White and Wilson first raise several interrelated issues

pertaining to the jury verdict. First they argue that the jury's

initial verdict finding them both guilty of simple possession on

Count 1 was final at the time announced and could not be

reconsidered. They also argue that the verdict on the lesser

included offense on Count 1 precluded a guilty verdict on Count 2

-conspiracy to possess with intent to distribute. Finally they

argue that in any event, the subsequent verdict on Count 2 was

flawed because the district court refused to give a lesser included

instruction on that count.

A.

Federal Rule of Criminal Procedure 31(d) allows further

deliberation on an announced verdict if the verdict is not

unanimous. Further deliberation is also allowed if the jury

expresses uncertainty, contingency or ambiguity in its announced

verdict. United States v. Rastelli,

(2d Cir.

1989). When the jury initially returned its verdict of guilty to

the lesser included offense of conspiracy to possess on Count 1, a

poll of the jury revealed that the verdict was unanimous.

We agree with the defendants that the court should not have

allowed the jury to reconsider its verdict on Count 1. A verdict

7 is final if (1) the deliberations are over, (2) the result is

announced in open court, and (3) the jury is polled and no dissent

is registered. United States v. Taylor,

(5th Cir.

1975); Fed.R.Crim.P. 31. All of these steps were satisfied in this

case when the jury announced its verdict as to Count 1 on Friday,

January 18, 1991.

The jury told the court that it had reached a verdict and

thought its task was complete. The foreperson stated that they

could not agree on a verdict on Count 1 as charged but they had

agreed on a guilty verdict on the lesser included offense of

possession. The jury was unable to return a verdict on Count 2

because of their inability to agree on whether the defendants

intended to distribute the cocaine. The court did not encourage or

discourage the jury from returning a partial verdict. It simply

accepted the verdict. See United States v. Di Lapi,

(2d Cir. 1981).

That no verdict was returned on Count 2 does not affect the

finality of the partial verdict on Count 1. A trial court may

accept a partial verdict on less than all counts of an indictment.

United States v. Ross,

(9th Cir. 1980). The trial

court was free, after accepting the verdict on Count 1, to return

the jury for further deliberations on Count 2. United States v. De

Laughter,

(5th Cir.), cert. denied,

,

(1972); United States v. Wheeler,

(5th

Cir. 1986).

In sum, the district court erred in allowing the jury to

further deliberate on Count 1 after it accepted the jury's verdict

8 on that count. We therefore vacate the judgment of conviction on

Count 1 so the district court, on remand, can reinstate the jury's

original verdict on that count and enter judgment on that verdict.

B.

Wilson and White argue next that the jury's verdict on Count

2 - guilty of conspiracy to possess with intent to distribute - is

inconsistent with the jury's verdict of simple possession on Count

1 and must be set aside. One problem with the defendants'

arguments is that the jury did not find in count 1 that defendants

had no intent to distribute the cocaine. The jury simply could not

agree. In this sense, therefore, the verdicts are not

inconsistent.

Even if the verdicts on Counts 1 and 2 were "truly

inconsistent," they would still stand. United States v. Powell,

,

(1984). In Powell, the jury found the

defendant guilty of using the telephone to facilitate a felony, yet

found him innocent of the predicate felony. The Court stated that

"[t]he most that can be said . . . is that the verdict shows that

either in the acquittal or the conviction the jury did not speak

their real conclusions, but that does not show that they were not

convinced of the defendant's guilt."

at 64-65 "It is . . .

possible that the jury, convinced of the guilt, properly reached

its verdict on the compound offense, and then through mistake,

compromise, or lenity, arrived at an inconsistent conclusion on the

lesser offense."

.

Thus, even if the verdict on Count 2 is considered

inconsistent, it is not subject to attack on that ground.

9 Appellants' contrary argument is without merit. See also United

States v. Zuniga-Salinas,

(5th Cir. 1992) (en banc).

C.

Appellants argue finally that the district court erred in

refusing to give the jury the option of returning a verdict on

Count 2 on the lesser included offense - conspiracy to possess

cocaine (without intent to distribute it.) Under Federal Rule of

Criminal Procedure 31(c), a defendant is entitled to a jury

instruction on a lesser included offense if: (1) the elements of

the lesser offense are a subset of the elements of the charged

offense; and (2) the evidence at trial permits a jury to rationally

find the defendant guilty of the lesser offense, yet acquit him of

the greater. United States v. Browner,

(5th

Cir. 1989) (citing Schmuck v. United States,

(1989)).

The parties agree that the elements of the lesser included offense

(conspiracy to possess) are a subset of the charged offense

(conspiracy to possess with intent to distribute). Given the

quantity of drugs involved in this case, we must decide whether a

rational jury could have found that the defendants possessed the

drugs but had no intent to distribute them.

White and Wilson argue that Wilson's testimony supports a

verdict for simple conspiracy to possess. Wilson relies first on

his testimony that he agreed to accept only one kilogram of cocaine

for his personal use plus $100,000 from Northcutt as payment for

his legal services. Wilson testified that when he and White

initially went to the hotel room and saw that Northcutt's suitcase

contained 21 kilos of cocaine, they left. He explained that he

10 returned to the hotel and picked up eleven kilos of the cocaine

because of his acute need to satisfy his addictive craving. He

denied having any intent to distribute any portion of the cocaine.

White did not testify and Wilson offered no explanation for the

intended disposition of White's share of the cocaine.

Even if we accept Wilson's version of his original agreement

with Northcutt to provide a defense in exchange for one kilo plus

$l00,000, that deal had obviously changed when Wilson picked up

eleven kilos of cocaine from the Holiday Inn. The question

therefore narrows to whether the district court abused its

discretion in declining to instruct on the lesser included verdict

in the face of undisputed evidence that these defendants possessed

twenty-one kilos of cocaine.

Other circuits have found that lesser quantities of drugs

negate the possibility of personal use. For example, in United

States v. Zapata-Tamallo,

(2d Cir. 1987), the Second

Circuit found no error in the trial court's refusal to instruct on

the lesser included offense. The defendant's possession of seven

and one-half kilograms of cocaine was found to be too great an

amount to be possessed solely for personal use. In United States

v. Johnson,

(10th Cir. 1984), where only 26.33 grams

of cocaine were involved, the court found no error in refusing to

offer the lesser included offense instruction.

In those and other cases cited by the government, there were

additional facts relevant to distribution, i.e., presence of

distribution paraphernalia or the use of an exculpatory defense by

the defendant which negates simple possession. Facts indicating an

11 ability or intent to distribute are also present in this case.

Wilson testified that White was his cocaine supplier. Although the

extent of White's distribution network was not presented, the most

rational explanation for White's presence in the scheme was that he

would sell the cocaine. We conclude that where the defendants are

found with twenty-one kilograms of cocaine, no rational jury could

find that they did not intend to distribute the cocaine. The sheer

quantity of the drugs involved negates an inference of personal

use.

The fact that the district court gave the lesser included

instruction on Count 1 does not change our opinion. The defendants

were not entitled to that instruction. The defendants therefore

got a more generous instruction than they were entitled to on the

first Count of the indictment. That did not require the trial

court to grant them an overly generous instruction on Count 2.

Admittedly, the inconsistency in instructing on the lesser included

verdict on Count One and declining that instruction on Count 2

created some confusion. But if that confusion had any effect on

the verdict it was beneficial to the defendants. We conclude

therefore that the trial court committed no reversible error in

declining to give a lesser included verdict charge on Count 2.

III.

The defendants also argue that the evidence was insufficient

to convict them. The standard for reviewing the sufficiency of the

evidence on appeal is whether, viewing the evidence in the light

most favorable to the verdict, any rational trier of fact could

have found the essential elements beyond a reasonable doubt.

12 United States v. Gallo,

(5th Cir. 1991); United

States v. Nixon,

(5th Cir. 1987), cert.denied,

(1988).

Both defendants argue that the evidence was insufficient to

establish a conspiracy. They contend that the government

introduced no evidence of an agreement between the two defendants.

To prove a conspiracy in a drug trafficking case, the government

must establish: (1) a common agreement to violate drug trafficking

laws, (2) known to the defendants, (3) that the defendants, with

knowledge, voluntarily joined. United States v. Elam,

(5th Cir. 1982). Specifically here, the government was

required to prove an agreement to possess cocaine with the intent

to distribute it. The government, of course, can prove a

conspiracy with circumstantial evidence. United States v.

Bankston,

(5th Cir. 1979).

The evidence at trial demonstrated that the defendants knew

each other well. White was Wilson's cocaine supplier and Wilson

had represented White. When Northcutt offered the cocaine to

Wilson for his legal services, the jury was entitled to find that

Wilson turned to White for assistance in disposing of the cocaine.

Wilson and White were in constant contact during the critical

stages of the negotiations about the transfer of the cocaine.

They arranged to meet and did meet at the Holiday Inn after

Northcutt gave Wilson the key to Room 909. They entered the room

together and both took precautions to avoid surveillance. White

opened the suitcase containing the cocaine and together with Wilson

counted it and returned it to its original position. They left the

13 room together and conversed in the parking lot before separating

for the remainder of the evening. The next morning, they arrived

at the motel within minutes of each other -- each carrying a canvas

bag capable of holding half of the twenty-one kilos of cocaine.

Also, as discussed previously, the sheer volume of the cocaine

involved is clearly sufficient to support the inference that the

defendants intended to distribute the drugs. United States v.

Dreyfus-de Campos,

(5th Cir.), cert. denied,

,

(1983). This evidence is sufficient to

support the jury's verdict finding that White and Wilson conspired

to possess cocaine with intent to distribute it.

White alone challenges the sufficiency of the evidence to

convict him on Count 1 - possession with intent to distribute. The

bulk of his argument goes to the absence of evidence to support an

inference that he intended to distribute the cocaine. We need not

consider this argument. Our conclusion that the jury's initial

verdict on the lesser included charge of simple possession must be

reinstated makes the distribution element of the offense

irrelevant.

IV.

Next, Wilson argues that the court's jury instruction

regarding intent to distribute was incorrect because it created a

presumption that impermissibly shifted the burden of proof on this

issue to the defendants. The court instructed the jury:

You may infer that an individual possessed a controlled substance with the intent to distribute it if it is inconceivable that the amount possessed was intended for personal consumption.

Because Wilson did not object to the instruction at trial, we

14 "will uphold even an inaccurate jury instruction provided no `plain

error' has resulted from the inaccuracy." United States v.

Birdsell,

(5th Cir. 1985), cert. denied,

(1986), quoting United States v. Reeves,

(5th Cir. 1985). "Plain error is error which, when examined in the

context of the entire case, is so obvious and substantial that

failure to notice and correct it would affect the fairness,

integrity or public reputation of judicial proceedings." United

States v. Vonsteen,

(5th Cir. 1991)(en banc).

(internal quotations and citations omitted)

Wilson relies on a number of cases that criticize instructions

directing the jury to presume the existence of an element of the

crime, if it believes certain evidence. See Francis v. Franklin,

(1985); Carella v. California,

,

(1989); Sandstrom v. Montana,

(1979).

The challenged jury instruction in this case simply does not fall

in the category of instruction prohibited by the above cases. The

district court told the jury "you may infer" intent to distribute

based on the quantity of drugs. It did not require the jury to

presume defendant's intent to distribute based on the quantity of

drugs involved. Thus, if the challenged instruction was erroneous

at all, which is doubtful, it certainly did not rise to the level

of plain error.

V.

The defendants next contest two of the district court's

evidentiary rulings. First, they contend that the district court

should not have admitted testimony concerning two extrinsic

15 offenses -- money laundering and possession of steroids --

allegedly committed by Wilson.2 Second, they argue that the

district court should have permitted Northcutt's previous attorney

to testify regarding Northcutt's expressed intent to fabricate

evidence in another case to gain favorable consideration from the

government. We review the district court's evidentiary rulings for

abuse of discretion. United States v. Rocha,

(5th Cir. 1990).

A.

John Hoffman, one of Wilson's former clients, testified for

the government. After Hoffman had been charged with importing

anabolic steroids, he consulted Wilson, who agreed to represent

him. During the pendency of these charges, Hoffman asked Wilson to

help protect proceeds of his sales from government seizure. Wilson

set up a trust account in Wilson's name and Hoffman directed his

debtors to send the money to that account. The funds were used to

pay attorneys fees due Wilson as well as for Hoffman's living

expenses. Hoffman testified that some of the money in the account

was from the sale of illegal steroids and some from the sale of

2 This argument is raised by both defendants even though the testimony regarding extrinsic offenses related only to defendant Wilson. The government argues that this point of error does not apply to White because the court admonished the jury several times that the Rule 404(b) evidence introduced against Wilson should not be considered against White. However, the court recognized in discussions outside the presence of the jury that White's culpability was "largely vicarious; that is, either as an aider and abettor of the Defendant Wilson on Count 1 which is alleged in Count 1, or as a conspirator in Count 2." The jury instructions contained those theories on which White could have been convicted. Given our disposition of this issue, we need not decide whether White could use this alleged error to challenge his own conviction.

16 legal vitamins. In addition, Wilson allowed Hoffman to store some

steroids at Wilson's house after Hoffman's arrest. Hoffman stated

that it takes about four weeks to withdraw gradually from steroids

and he didn't want to keep the drugs in his home. About twice a

week, Hoffman would go to Wilson's home and take an injection of

steroids from the cache.

The government introduced Hoffman's testimony at trial under

Rule 404(b)3, as probative of Wilson's intent in this case.

Interpreting this rule, this circuit holds that such evidence is

admissible if (1) it is relevant to an issue other than the

defendant's character, and (2) the probative value of the evidence

substantially outweighs the undue prejudice. United States v.

Beechum,

(5th Cir. 1978)(en banc). To meet the

first prong of the Beechum test, the jury must have been able to

reasonably find that the extrinsic offense was committed by the

defendant.

. In addition, "[w]here the issue addressed

is the defendant's intent, extrinsic offenses that are similar in

nature are admissible because `the relevancy of the extrinsic

offense derives from the defendant's indulging himself in the same

state of mind in the perpetration of both the extrinsic and charged

offenses. The reasoning is that because the defendant had unlawful

3 Rule 404(b) states:

(b) Other crime, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the a character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

17 intent in the extrinsic offense, it is less likely that he had

lawful intent in the present offense.'" United States v. Osum,

(5th Cir. 1991). citing

.

Wilson challenges the admission of the evidence first by

arguing that the government did not prove that Wilson's conduct

constituted illegal money laundering. Money laundering requires

proof of knowledge that the funds were derived from an illegal

source.

and 1957. The testimony of Hoffman was

a sufficient basis from which the jury could find that Wilson knew

that at least some of the funds came from Hoffman's sale of illegal

steroids. United States v. Johnson,

(5th Cir.

1989)(Testimony of single witness sufficient to establish extrinsic

offense.) In addition, Wilson's precautions against government

seizure of the proceeds of Hoffman's sales tend to support the

government's position that Wilson knew the funds were not from a

legitimate business.

Wilson also argues that the extrinsic acts are not similar to

the charged offenses in this case and are therefore not relevant to

any issue other than his character. We disagree. Wilson argued

entrapment and diminished capacity to negate an inference that he

intended to distribute the cocaine. These defenses place Wilson's

intent and predisposition to commit a crime directly in issue.

United States v. Kirk,

(5th Cir. 1976) (defense of

intoxication places intent in issue); United States v. Parrish,

(5th Cir. 1984) (defense of entrapment places

predisposition in issue).

Wilson testified at length about the six day sleepless cocaine

18 binge he was on which ended at the time he was arrested when

picking up the eleven kilos of cocaine. He argued that in this

state of mine he lacked the capacity to form the criminal intent

necessary to be convicted and that Northcutt and the DEA had

entrapped him. Both extrinsic offenses testified to by Hoffman,

while not identical to the offenses charged in this case, were

committed at times when Wilson was using cocaine but was not on a

"binge". They are relevant to establish that Wilson could form the

intent to engage in illegal activity -- storing illicit drugs and

protecting the proceeds of the sale of these drugs -- to assist his

clients and secure his fee. Both occurred when he was not under

the influence of a prolonged cocaine binge. The evidence also

shows Wilson's predisposition to violate drug trafficking and money

laundering laws and tends to negate Wilson's defense of entrapment.

Wilson argues finally that any probative value of the

extrinsic offense evidence is outweighed by its prejudicial impact

on the jury. The jury was carefully instructed about the limited

purpose of this evidence both at the time of the testimony and

before deliberations. We have held that danger of prejudice to the

defendant is minimal so long as it is clear to the jury that the

extrinsic evidence is being introduced for the sole purpose of

showing intent. United States v. Williams,

(5th

Cir. 1990). Given the probative value of the evidence and the

district court's limiting instruction, the court did not abuse its

discretion by permitting the government to introduce this evidence.

B.

White and Wilson sought to invoke Rule 404(b), along with

19 Rules 405(b) and 406, to introduce evidence of extrinsic offenses

committed by Northcutt, the government's star witness. They

proffered testimony by Northcutt's prior attorney that Northcutt

had previously offered to fabricate testimony against an individual

in exchange for government leniency in charges pending against him.

The defendants argue that Northcutt's testimony was admissible

under Rule 404(b) to show Northcutt's intent to fabricate evidence

in order to gain favorable consideration from the government in his

own case. The district court, relying on Rule 608(b)4 ruled that

the defendants could elicit the evidence of Northcutt's credibility

only on cross-examination of Northcutt, not through an extrinsic

source. We agree.

First, except for his credibility, Northcutt's intent was not

an issue in the case. Reeves, 892 F.2d at 1225. Also, unlike the

defendant's evidence in United States v. McClure, the proffered

evidence in this case was not probative of Wilson's intent to

commit the charged offense.

(5th Cir. 1977). This

evidence could have served only one function: to demonstrate that

Northcutt had a proclivity to lie and therefore was probably lying

4 Federal Rules of Evidence 608(b) provides:

(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (l) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. . . .

20 in this case. Rule 404(b) prohibits the use of extrinsic act

evidence for this purpose. The use of evidence to attack a

witness's credibility is subject to the limitations of Rule 608.

Under that rule, specific instances of misconduct of a witness for

that purpose can not be proved by extrinsic evidence. The trial

court did not abuse its discretion by excluding the proffered

testimony.

VI.

Wilson argues finally that the district court improperly

adjusted his sentence by increasing his offense level two points

for abuse of a position of trust or use of a special skill.

U.S.S.G. § 3B1.3. We will "uphold the district court's sentence so

long as it results from a correct application of the guidelines to

factual findings which are not clearly erroneous." Foster (cited

below) citing

(d); United States v. Mejia-Orosco,

(5th Cir. 1989); and United States v. Sarasti,

(5th Cir. 1989).

Section 3B1.3 of the Sentencing Guidelines reads:

If the defendant . . . used a special skill, in a manner that significantly facilitated the commission or concealment of the offense, increase by 2 levels. . . .

Application Note 2 to this section states:

"Special skill" refers to a skill not possessed by members of the general public and usually requiring substantial education, training or licensing. Examples would include pilots, lawyers, doctors, accountants, chemists, and demolition experts.

The "Background" information indicates that:

This adjustment applies to persons who abuse their . . . special skills to facilitate significantly the commission or concealment of a crime. Such persons generally are viewed as more culpable.

21 The presentence report recommended the increase because Wilson

was a well-respected lawyer who was able to use his reputation to

conceal his drug-related activity. The district court stated the

following reasons for the increase:

[I]f Mr. Wilson were not a professional person who was in a position to charge substantial amounts of money for personal services, then I can't imagine that sort of trade ever being feasible. Moreover, I think it was facilitated because of his knowledge as an attorney, because of his knowledge of laws in those areas and how to avoid detection and of course communications between clients or would-be clients and attorneys are not as easily detected or apprehended as perhaps would be other communications.

To apply § 3B1.3 to any factual scenario, two factors must be

evaluated. First, whether a position of trust or special skill

existed, and second, whether the defendant used the position or

skill "in a manner that significantly facilitated the commission or

concealment of the offense." United States v. Brown,

(5th Cir. 1991). Clearly the skills possessed by

lawyers are "special skills" which the guideline recognizes could

be used to facilitate or conceal a crime. See Application Note 2.

The question for decision therefore narrows to whether the district

court's finding that Wilson used his skills as a lawyer to

"significantly facilitate the commission or concealment" of his

offense is clearly erroneous.

First, Wilson's skills as a defense lawyer specializing in the

defense of drug cases placed him in a unique position to trade

services for drugs. Such services are so valuable to an indicted

drug trafficker that it is easy to understand why he would give up

a fortune in drugs to obtain them. Also, Wilson relied on his

attorney/client relationship to talk confidentially with Northcutt

22 and arrange the drug transfer. In addition, Wilson used knowledge

he had acquired as a prosecutor and defense lawyer to avoid

surveillance in their first visit to Room 909 of the Holiday Inn

and otherwise to avoid detection and apprehension.

These charges followed a sting operation. Thus, the success

of the criminal enterprise was doomed from the outset. But we are

unwilling to say that failure of the objective of the conspiracy

means the defendant's special skills did not "significantly

facilitate" the criminal activity. We look at the use of those

skills through Wilson's eyes. He used those skills to generate the

drugs to be distributed. He later used those skills to facilitate

transfer of the drugs without being caught. The district court's

findings on this issue are not clearly erroneous.

For the foregoing reasons the convictions of defendants White

and Wilson on Count 1 are vacated. Their convictions on Count 2

are affirmed. This case is remanded for entry of a judgment of

conviction on the original verdict in Count 1 and for resentencing.

VACATED in part, AFFIRMED in part and REMANDED.

KING, Circuit Judge, concurring in part and dissenting in part.

Although I concur in the majority's affirmance of Appellant

White's conviction, I find merit in Appellant Wilson's claim that

he was entitled to a jury instruction on the lesser-included

offense of conspiracy to possess cocaine. Accordingly, I

respectfully dissent from the decision to affirm his conviction.

23 I. The Evidence Supporting Wilson's Theory of the Case

As an initial matter, I believe it is necessary to set out in

some detail the extensive trial testimony offered by the defense

that supports Wilson's claim that he conspired only to possess, and

never harbored any intent to distribute, the cocaine. Waiving his

Fifth Amendment right, Wilson took the witness stand and testified

at great length about a number of matters that are directly

relevant to his claim of entitlement to a lesser-included offense

instruction. First, he told of his extensive history of substance

abuse which he inherited from his father's side of the family. He

testified about his bouts with alcoholism as early as his high

school years, his addiction to various prescription medications,

and finally his severe cocaine abuse that led to the conviction

which is the subject of this appeal.

Specifically, with respect to his cocaine addition, Wilson

stated that within a short time after his first exposure to the

drug he was intensely addicted. He testified that had snorted so

much cocaine within the first eight months of use that the drug had

eaten away most of the septum inside his nose. Wilson's preferred

method was to drink cocaine powder stirred into ice water. He

claimed that he ingested massive doses of the drug in this manner.

He recounted periods in which he was so affected by the drug that

he could not eat or sleep for over a week. During these periods

Wilson described his mind as "ra[c]ing literally a hundred and

fifty miles an hour." He further discussed how his tolerance to

cocaine dramatically increased over time, requiring increasing

doses to acquire the same physical effect. Wilson explained to the

24 jury how excruciating his withdrawals were -- "the most

unimaginable torture" -- and that his chief concern at any given

moment was to possess an adequate stash of cocaine. "I had a

horror of running out of it. I didn't want that to ever, ever

happen. I wanted to get enough so I didn't run out," he told

jurors.

Wilson also discussed his relationship with White and

Northcutt. Wilson denied having bargained for twenty-one kilograms

of cocaine; he testified that he had agreed with Northcutt to

exchange legal services for $100,000 and one kilogram of cocaine.

Wilson claimed that Northcutt had never stated that he was going to

leave twenty-one kilograms in the hotel room where Wilson agreed to

pick up what he expected would be $100,000 and one kilogram of

cocaine.5

Wilson testified that his friend White's role in the

transaction was limited to serving as a bodyguard on the night of

November 20, 1990, when the two men went to the Holiday Inn to pick

up what Wilson believed would be cash and a single kilogram of

cocaine. Wilson claimed that he told White that Wilson was going

to pick up a large amount of cash and that White had no knowledge

of any cocaine being exchanged until the two men opened up the

suitcase and discovered twenty-one kilograms.6

5 The only evidence that the Government offered regarding the alleged agreement to exchange twenty-one kilograms was Northcutt's uncorroborated testimony. Unlike numerous other conversations between Northcutt and Wilson, that alleged conversation was not taped-recorded. 6 The recording of the events in the hotel room was only on videotape. The Government did not offer any audiotape into evidence, so there is no way to determine what the two men said

25 Wilson testified that after the two men left the hotel room

without taking any of the cocaine, Wilson stayed up that entire

night exhausting his own supply of cocaine. Wilson claimed that at

this point he was on a severe cocaine binge, which had been

exacerbated by the prospect of possessing the tremendous amount of

cocaine that he had seen at the hotel. He stated that the next

morning he drove to White's house, hoping White would offer him

cocaine, which White did not. Wilson denied that the two made any

arrangements about Northcutt's cocaine. Wilson, who claimed he had

that morning degenerated into a state of diminished capacity,

testified that he was so addicted to the drug that he was unable to

resist the siren song of the abundance of cocaine in the hotel

room. Wilson then testified about going to the hotel for the

second time:

I can't really explain what my intent was at that time. I don't know if I had any intent. I was being pulled toward the cocaine . . . . When I got to the hotel I went back upstairs. I went up to the 9th floor. . . . I walked in. I put whatever I put in the green bag. I didn't even count them. There was no need for me to count them. It was a lot of cocaine. I put it in the bag, and I bolted out the door. . . . I was going to go take the cocaine that I had, I was going to go . . . somewhere and do that stuff until I ran out of it again which would have been several years admittedly, but I wouldn't have lived that long. I was going to do it and do it, and I was going to see this thing through to the end of me. . . . I was going to do cocaine until I couldn't do anything else.

When police arrested Wilson as he exited from the hotel, they found

on his person a small amount of cocaine and a straw -- a snorting

device -- containing a residue of cocaine.

A second defense witness, psychiatrist James Grigson,

to each other.

26 testified that he had known Wilson for some time, in both a

professional and personal capacity. Grigson corroborated Wilson's

testimony about his long history of severe substance abuse.

Grigson opined that in Wilson's case his "propensity" was

congenital. Grigson was specifically questioned in the

hypothetical about whether someone in Wilson's state of severe

addiction might have been able to form an intent only to possess an

inordinately large quantity of cocaine, such as that involved in

the instant case, rather that to possess with the intent to

distribute. The following colloquy with defense counsel merits

full quotation:

Q. As I described specific intent -- that is intent to distribute as opposed to general intent that is an intent to possess for one's self -- what happens to [a seriously addicted] individual's capacity to form specific intent as opposed to general intent?

A. It would become less and less because they would not see beyond simply obtaining, getting. So they will not be thinking in terms of goal-oriented achievement, future acts. It would be here and now.

Q. . . . [I]f such an individual were given an opportunity to obtain more cocaine, even at great potential personal risk or cost, absent some intervening circumstances beyond an individual's control, could this person's behavior be predicted?

A. Yes, sir, it could be.

Q. What would it be?

A. They would try to obtain at any expense. . . .

II. Wilson's Entitlement to a Lesser-Included Offense Instruction

Turning to the legal significance of this testimony, I believe

that under the established standards regarding the propriety of

lesser-included offense instructions, Wilson was entitled to an

27 instruction on conspiracy to possess. I agree that in reviewing a

district court's refusal to submit a lesser-included offense

instruction, we must apply the two-pronged standard which the

majority applies. See Schmuck v. United States,

(1989). With deference, I disagree with the majority's application

of the second prong -- whether "a jury could rationally find the

defendant guilty on the lesser offense, yet acquit him of the

greater."

at 716 n.8.

The majority errs by accepting the Government's argument that

Wilson cannot possibly satisfy the second prong in view of the

large amount of cocaine involved in this case. The Government

argues that the extensive quantity precludes a jury from rationally

finding that Wilson did not conspire to possess with the intent to

distribute, as opposed to conspiring with the intent only to

possess. The Government and the majority cite cases from other

circuits in which courts have rejected a defendant's claim of

entitlement to a lesser-included offense charge when a defendant

possessed an amount of cocaine so large that it belied any

suggestion of personal use. See, e.g., United States v. Zapata-

Tamallo,

(2d Cir. 1987) (jury could not rationally find

that defendant possessed seven-and-a-half kilos of cocaine for

personal use).

Such cases are not precisely on point in the present case. To

my knowledge, in no case in which a court has denied a defendant a

lesser-included offense instruction on simple possession because he

possessed a large amount of narcotics, see generally, David E.

Rigney, Annotation, Propriety of Lesser-Included-Offense Charge in

28 Federal Prosecution of Narcotics Defendant,

(1992) (collecting cases), did the defendant take the stand and

offer the same type of defense as Wilson. Wilson claimed that he

was so addicted that his only intent was to possess enough cocaine

to enable him to ingest the drug for the remainder of his life,

even if he died in the process of attempting to consume it all. He

testified that he was so mentally and physically affected by his

addiction that his exclusive desire was to ingest the drug. Dr.

Grigson's testimony supported this claim. Moreover, as the

majority notes, in cases like Zapata-Tamallo, the Government

offered other evidence that indicated that a defendant who

possessed a substantial amount of a controlled substance also

intended to distribute it. In the instant case, the Government was

unable to offer against Wilson the usual evidence of an intent to

distribute, such as paraphernalia commonly associated with

distribution or a prior criminal record of distribution. Indeed,

as the majority points out, the Government's only evidence of

Wilson's intent to distribute, other than the sheer quantity of

cocaine involved, was evidence that White had in the past

distributed cocaine to Wilson.

A well-established line of authority holds that a lesser-

included offense instruction is required if any evidence is offered

that permits jurors rationally to acquit of the greater offense and

convict of the lesser -- irrespective of how tenuous or

unbelievable a judge may consider the testimony or evidence to be.

See, e.g., United States v. LaMorte,

(2d Cir. 1991)

("It is well settled that 'a criminal defendant is entitled to have

29 instructions presented relating to any theory of defense for which

there is any foundation in the evidence, no matter how weak or

incredible that evidence may be'" (citation omitted).); United

States v. Soleto-Murillo,

(9th Cir. 1989) ("[The]

evidence may be weak, insufficient, inconsistent, or of doubtful

credibility" (citation omitted).); United States v. Thorton,

(D.C. Cir. 1984) ("Under settled principles, . . . a

defendant is entitled to an instruction on a lesser included

offense if there is any evidence fairly tending to bear upon the

lesser included offense, `however weak' that evidence may be.");

United States v. Chapman,

(10th Cir. 1980),

cert. denied,

(1980).7 The Supreme Court has long

espoused similar views, at least in the context of murder trials.

See, e.g., Beck v. Alabama,

, 635 & n.11 (1980);

Stevenson v. United States,

(1896). In

Stevenson, the trial judge denied the capital defendant's request

for a lesser-included offense instruction on manslaughter. The

Court reversed the conviction. The Court held that a judge's

opinion that the evidence against a defendant was not credible or

otherwise had no probative value was irrelevant to determining

whether a defendant was entitled to a lesser-included offense

instruction on manslaughter. As the Court stated, weighing evidence is the exclusive province of the

jury:

7 The majority of state courts likewise adhere to this extremely permissive standard. See, e.g., State v. Belle,

(Conn. 1990); Williams v. State,

(Nev. 1983) People v. Farmer,

(Ill. App. 1977).

30 [A]s long a there is some evidence upon the subject [of manslaughter] the proper weight to be given it is for the jury to determine. . . . The evidence might appear to the court to be simply overwhelming to show that the killing was in fact murder, and not manslaughter or an act performed in self-defense, and yet, so long as there was some evidence relevant to the act of manslaughter, the credibility and force of such evidence must be for the jury, and cannot be [a] matter of law for the decision of the court.

(emphasis added); see also Sparf & Hansen v. United States,

(1895).

Therefore, when a defendant seeks a lesser-included offense

instruction, a judge must look at the evidence supporting the

defendant's theory of the case, in the light most favorable to the

defendant, and ask only whether the evidence proffered is minimally

sufficient to support an acquittal on the greater offense and a

conviction on the lesser-included offense. Cf. Jackson v.

Virginia,

(1979) (discussing similar approach in

context of appellate review of constitutional sufficiency of the

evidence to support a conviction).8 Because Wilson undoubtedly

presented some evidence upon which a jury could rationally acquit

of conspiracy to possess with the intent to distribute and instead

convict of conspiracy to possess, a lesser-included offense

8 Jackson concerns appellate review of the sufficiency of evidence to convict, while the instant case involves appellate review of the sufficiency of evidence to acquit. While Jackson's "deferential standard of review," United States v. Nusraty,

(2d Cir. 1989), is analogous, it is not exactly the converse of the review in this type of case. Although appellate courts assess the sufficiency to convict by considering the evidence in a light most favorable to the prosecution, Jackson still establishes a rather high evidentiary floor: a rational jury must find beyond a reasonable doubt. The standard for a rational acquittal is much more permissive. A rational jury obviously need not find a fact beyond a reasonable doubt to rationally acquit. There must only be some evidence, however slight, to acquit.

31 instruction should have been granted.

There is one exception to the rule that once the defense

offers any evidence supporting its theory it is entitled to a

lesser-included offense instruction. That exception, allowing a

judge as a matter of law to foreclose a jury's consideration of

such evidence for purposes of convicting of a lesser-included

offense, is when the defense's testimony or other evidence is

"incredible or otherwise insubstantial on its face" -- such as if

the defendant's claim "could not have occurred under the laws of

nature." United States v. Osum,

(5th Cir.

1991).

While it may raise eyebrows, Wilson's theory of personal use

is not facially incredible or insubstantial. Wilson's most

compelling testimony, which was supported by Dr. Grigson's expert

opinion, was that Wilson entered into the conspiracy because he saw

it as an opportunity to possess all the cocaine that he could

possibly ever consume, even if it killed him in the process.

Wilson portrayed himself as a proverbial Midas with respect to

cocaine. The substantial amount of cocaine involved is, thus,

consistent with Wilson's theory of defense. Jurors would not have

been irrational in crediting the defense's claim, supported by

voluminous testimony from Wilson and Grigson, that Wilson never

intended to distribute and conspired only to possess the cocaine

for personal use.

Accordingly, I believe that Wilson should be granted a new

trial. I respectfully dissent from the decision to affirm his

conviction.

32