UNITED STATES of America, Appellee, v. Thamud ELDRIDGE, a/k/a Robert Muhammad, Defendant-Appellant, 528 F. App'x 17

SUMMARY ORDER Defendant Thamud Eldridge stands convicted after a jury trial on charges of being a felon in possession of a firearm, see 18 U.S.C. § 922(g)(1), possessing crack cocaine with intent to distribute, see 21 U.S.C. § 841(a)(1), and unlawfully possessing marijuana, see id. § 844(a). On this appeal, Eldridge challenges the second count of conviction, arguing that

(1) Buffalo Police Detective William Donovan was erroneously allowed to testify that the 2.5 grams of crack recovered from Eldridge was consistent with dealing rather than personal use, and (2) the evidence was insufficient to support a guilty verdict. We review rulings on expert testimony for abuse of discretion and will vacate a conviction only for manifest and prejudicial error. See United States v. Barrow, 400 F.3d 109, 123 (2d Cir.2005).

While we review a sufficiency challenge de novo, we are obliged to view the evidence in the light most favorable to the verdict and to uphold the conviction as long as “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original). We assume the parties’ familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to affirm. 1.

Expert Testimony Eldridge claims that Detective Donovan’s testimony that 2.5 grams of crack was more consistent with dealing than with personal use impermissibly opined on El-dridge’s mental state, “an element of the crime charged.” Fed.R.Evid. 704(b). Moreover, Eldridge submits that the testimony should have been excluded as not helpful to the jury. See id. 702(a). Neither argument has merit.

Expert testimony that a quantity of drugs is generally more consistent with distribution than with personal use, if credited, may allow the jury to infer a defendant’s intent, but that testimony does not itself opine on the particular defendant’s intent. Thus, such testimony is normally admissible. See United States v. Lopez, 547 F.3d 364, 373 (2d Cir.2008) (upholding against Rule 704(

b) challenge expert testimony “that, based on his experience as a drug investigator, the drugs and paraphernalia found in [defendants car were more consistent with distribution than personal use”). Nor is there reason to conclude that Donovan’s testimony was insufficiently helpful to the jury to justify admission. See generally United States v. Tapia-Ortiz, 23 F.3d 738, 741 (2d Cir.1994) (“Testimony about the weight, purity, dosages, and prices of cocaine clearly relates to knowledge beyond the ken of the average juror.”). In urging otherwise, Eldridge invokes United States v.

Boissoneault, 926 F.2d 230 (2d Cir.1991). There, however, an expert witness testified that the totality of physical evidence in the case “suggested ‘street level distribution of cocaine.’ ” Id. at 233 (proposing, without deciding, that testimony did not meet Rule 702(a)’s helpfulness criterion because jury could draw own conclusion as to defendant’s involvement in cocaine distribution). Here, Detective Donovan offered no such overarching, case-specific opinion; he simply provided the jury with the benefit of his 21 years’ experience about the quantity of drugs possessed by traffickers versus users.

Thus, he testified that, in his experience, individuals arrested for purchasing crack cocaine for personal use routinely possess no more than “two to three bags,” each containing “one-tenth of a gram” or less, Trial Tr. 106, J.A. 885; see also id. at 112, J.A. 891 (testifying that, on rare occasion, user will purchase up to 10 bags at once), information plainly beyond the ken of the average juror. He expressed no opinion as to Eldridge’s own intent or involvement in the distribution of crack cocaine. See United States v.

Boissoneault, 926 F.2d at 233 (endorsing expert testimony that “simply explain[s] the likely significance of properly admitted physical evidence”). Accordingly, we identify no abuse of discretion in the admission of Detective Donovan’s expert opinion testimony. 2. Sufficiency of Evidence Eldridge argues that, irrespective of evi-dentiary error, the record does not support his conviction on Count Two. Specifically, he maintains that no reasonable jury could have concluded beyond a reasonable doubt that the 2.5 grams of crack cocaine in question were intended for distribution rather than personal use.

We are not persuaded. “ [Possession of a small quantity of drugs standing alone is insufficient to prove an intent to distribute,” but because “the statute specifies no minimum amount, any amount of drugs, however small, will support a conviction when there is additional evidence of [such] intent.” United States v. Martinez, 54 F.3d 1040, 1043 (2d Cir.1995).

In arguing that additional evidence of intent is missing here, Eldridge points to the lack of drug-dealing paraphernalia found on his person, along with his possession of cigars that, he asserts, could be used to make crack-laced marijuana cigarettes for his own consumption. Eldridge was, of course, free to make these arguments to the jury, which apparently rejected them. See United States v. Jackson, 335 F.3d 170, 180 (2d Cir.2003) (“[I]t is the task of the jury, not the court, to choose among competing inferences that can be drawn from the evidence.”).

In fact, Detective Donovan testified on redirect examination that he had “never,” in his 21 years’ experience, heard of 2.5 grams of crack cocaine being used in a marijuana cigarette. Trial Tr. 123, J.A. 902. More to the point, Donovan also testified that firearms — such as the one supporting Eldridge’s felon-in-possession conviction, not challenged on appeal, see 18 U.S.C. § 922(g)(1) — are common tools of drug dealers looking to prevent theft of money and contraband. See United States v.

Boissoneault, 926 F.2d at 234 (observing that defendant’s ownership of “gun or other weapon” would support “inference that he was engaged in the dangerous business of drug trafficking”); accord United States v. Wallace, 532 F.3d 126, 131 (2d Cir.2008). While Eldridge tried to mitigate his possession by characterizing it as fleeting and highlighting that the firearm was inoperable unless manipulated, a reasonable jury was nevertheless entitled to consider this possession, together with Donovan’s testimony regarding drug quantity, to draw an inference of intent to distribute.

Notably, the weapon was recovered from a second-story apartment in which Eldridge was arrested following a scuffle with police, after he had hurled himself through a glass window at the conclusion of a high speed foot chase. The jury was free to conclude from these circumstances that such a dramatic physical encounter was not consistent with possession of crack for personal use, particularly where the quantity possessed was 25 times the normal single dosage. Accordingly, we reject Eldridge’s challenge to the sufficiency of the evidence supporting his conviction. The judgment of conviction is AFFIRMED. .

Insofar as a court must protect against the "assumption that the [expert] witness has knowledge of the defendant's activities that goes beyond the evidence at trial,” United States v. Barrow, 400 F.3d at 124 (internal quotation marks omitted), no rational juror here could so assume in light of Donovan's testimony that he was not involved "at all” in the investigation or arrest of Eldridge, Trial Tr. 11, J.A. 890.