Kenneth Fitzgerald v. United States, 719 F.2d 1069 (10th Cir. 1983). · Go Syfert
Kenneth Fitzgerald v. United States, 719 F.2d 1069 (10th Cir. 1983). Cases Citing This Book View Copy Cite
67 citation events (4 in the last 25 years) across 7 distinct courts.
Strongest positive: United States v. Waugh (ca10, 2019-12-17)
Treatment trajectory · 1984 → 2026 · click a year to view as-of
1984 2005 2026
Top citers, strongest first. 31 distinct citers.
cited Cited as authority (rule) United States v. Waugh
10th Cir. · 2019 · confidence medium
Indeed “[t]here is a surprising lack of evidence which tends to support simple possession.” Fitzgerald v. United States, 719 F.2d 1069, 1072 (10th Cir. 1983).
discussed Cited as authority (rule) United States v. Trujillo (2×) also: Cited "see, e.g."
10th Cir. · 2004 · confidence medium
Special Agent Mans acknowledged he could not see Mr. Trujillo place what he carried, "a small package,” in the trunk because the trunk lid was up, blocking the view. 4 .Fitzgerald v. United States, 719 F.2d 1069, 1071 (10th Cir.1983), and its progeny require: 1.
discussed Cited as authority (rule) United States v. Pearson, Eric (2×)
10th Cir. · 2000 · confidence medium
United States v. Moore, 108 F.3d 270, 272 (10th Cir. 1997) (citing Fitzgerald v. United States, 719 F.2d 1069, 1071 (10th Cir. 1983)).
discussed Cited as authority (rule) Hooks v. Ward
10th Cir. · 1999 · confidence medium
That alone bars him from claiming error on this point.” (emphasis added)); United States v. Duran, 127 F.3d 911, 914-15 (10th Cir.1997), cert. denied, — U.S. —, 118 S.Ct. 1389 , 140 L.Ed.2d 648 (1998); Fitzgerald v. United States, 719 F.2d 1069, 1071 (10th Cir.1983); United States v. Chapman, 615 F.2d 1294, 1299 (10th Cir.1980); United States v. Coppola, 526 F.2d 764, 773 (10th Cir.1975); but see United States v. Cooper, 812 F.2d 1283, 1286 (10th Cir.1987) (upholding conviction on a lesser included offense that was instructed to the jury sua sponte by the court holding: “The trial judg…
cited Cited as authority (rule) United States v. Pearson, Dominic
10th Cir. · 1998 · confidence medium
United States v. Moore , 108 F.3d 270, 272 (10th Cir. 1997) (citing Fitzgerald v. United States , 719 F.2d 1069, 1071 (10th Cir. 1983)).
cited Cited as authority (rule) United States v. Dominic G. Pearson
10th Cir. · 1998 · confidence medium
United States v. Moore, 108 F.3d 270, 272 (10th Cir.1997) (citing Fitzgerald v. United States, 719 F.2d 1069, 1071 (10th Cir.1983)).
cited Cited as authority (rule) United States v. Moore
10th Cir. · 1997 · confidence medium
Fitzgerald v. United States, 719 F. 2d 1069, 1071 (10th Cir. 1983).
cited Cited as authority (rule) United States v. Anthony G. Moore
10th Cir. · 1997 · confidence medium
Fitzgerald v. United States, 719 F.2d 1069, 1071 (10th Cir.1988).
cited Cited as authority (rule) United States v. Richard Ray Lacey
10th Cir. · 1996 · signal: cf. · confidence medium
Cf. Fitzgerald v. United States, 719 F.2d 1069, 1070 (10th Cir.1983) (25 grams of cocaine and 33 grams of amphetamine too significant to support an instruction of simple possession).
discussed Cited as authority (rule) United States v. Titus Webster
10th Cir. · 1995 · confidence medium
The district court declined to so instruct, and, on appeal, counsel argues that such constitutes reversible error. 19 On appeal, counsel for the United States suggests that the "use" of a deadly or dangerous weapon is not really an essential element under 18 U.S.C. 111, but only a "sentence enhancer." We need not here address that matter since, as above indicated, the district court, apparently without objection, instructed the jury that under 18 U.S.C. 111 the prosecution must prove, inter alia, beyond a reasonable doubt, that Webster assaulted and resisted Officer McFadden "with a deadly or …
discussed Cited as authority (rule) United States v. Lacey
D. Kan. · 1994 · confidence medium
Moreover, the amounts possessed and distributed were of such magnitude that it is unreasonable to conclude that those amounts were possessed for personal consumption. 3 See United States v. Rodriguez-Garcia, 983 F.2d 1563, 1572 (10th Cir.1993) (district court did not commit error in rejecting lesser included instruction where evidence showed that the defendant was trying to sell to drugs and possessed three kilograms of cocaine and twenty pounds of marijuana); Fitzgerald v. United States, 719 F.2d 1069, 1071 (10th Cir.1983) (evidence of 25 grams of cocaine and 33 grams of amphetamine does not …
discussed Cited as authority (rule) United States v. Walter Edmond Moore, Jr.
10th Cir. · 1994 · confidence medium
Defendant cites Fitzgerald v. United States, 719 F.2d 1069, 1071-72 (10th Cir.1983), as establishing the proposition that a trial court is not "apt" to give the lesser included offense instruction if (1) there is a substantial amount of drugs involved, and (2) there is plenty of traffic to and from the defendant's storage place.
discussed Cited as authority (rule) United States v. Rhoda Jewell Surveyor
10th Cir. · 1993 · confidence medium
Dennison, 937 F.2d at 564 ; Fitzgerald v. United States, 719 F.2d 1069, 1071 (10th Cir.1983). 8 We find no error in the district court's refusal to give the lesser included offense instructions proffered by the defense.
cited Cited as authority (rule) United States v. Ronnie Horn
10th Cir. · 1991 · confidence medium
Fitzgerald v. United States, 719 F.2d 1069, 1071 (10th Cir.1983).
cited Cited as authority (rule) United States v. Jesus Martinez
10th Cir. · 1991 · confidence medium
See United States v. Chalan, 812 F.2d 1302, 1308 (10th Cir.1987); Fitzgerald v. United States, 719 F.2d 1069, 1071 (10th Cir.1983).
discussed Cited as authority (rule) United States v. Diane Aeschbacher, United States of America v. Ron Gillis, United States of America v. Gary Barkdoll
10th Cir. · 1991 · confidence medium
"Although a criminal defendant is entitled to an instruction regarding his theory of the case, a trial judge is given substantial latitude and discretion in tailoring and formulating the instructions so long as they are correct statements of law and fairly and adequately cover the issues presented." Pack, 773 F.2d at 267 . 27 In Fitzgerald v. United States, 719 F.2d 1069, 1071 (10th Cir.), we set out the requirements which a defendant must satisfy in order to warrant a lesser included offense instruction: 28 "1.
cited Cited as authority (rule) United States v. Darren Jay Dennison
10th Cir. · 1991 · confidence medium
Fitzgerald v. United States, 719 F.2d 1069, 1071 (10th Cir.1983).
cited Cited as authority (rule) United States v. Gary Ronald Guder and Everette Vern Guder, True Name Everett Vern Guder
10th Cir. · 1991 · confidence medium
United States v. Joe, 831 F.2d 218, 219 (10th Cir.1987), cert. denied, 484 U.S. 1072 (1988), citing Fitzgerald v. United States, 719 F.2d 1069, 1071 (10th Cir.1983).
discussed Cited as authority (rule) United States v. Stephen Thomas Haar
10th Cir. · 1991 · confidence medium
In Fitzgerald v. United States, 719 F.2d 1069, 1071 (10th Cir.1983), we set forth the following factors that must be satisfied before a defendant is entitled to a lesser-included-offense instruction: 1.
examined Cited as authority (rule) United States v. Leslie Decker Young (4×) also: Cited "see"
10th Cir. · 1989 · confidence medium
United States v. Joe, 831 F.2d 218, 219 (10th Cir. 1987), cert. denied, — U.S.-, 108 S.Ct. 1043 , 98 L.Ed.2d 1006 (1988); Fitzgerald v. United States, 719 F.2d 1069, 1071 (10th Cir.1983).
cited Cited as authority (rule) United States v. Enrique Espinosa
9th Cir. · 1987 · confidence medium
See United States v. Johnson, 734 F.2d 503, 505-06 (10th Cir.1984) (per curiam); Fitzgerald v. United States, 719 F.2d 1069, 1071-72 (10th Cir.1983).
discussed Cited as authority (rule) United States v. Walter Ivan Cooper, United States of America v. Raymond Keith Cooper (2×)
10th Cir. · 1987 · confidence medium
In Fitzgerald v. United States, 719 F.2d 1069, 1071 (10th Cir.1983), we indicated that a defendant is entitled to a lesser included offense instruction when: 1) there has been a proper request; 2) the lesser included offense consists of some, but not all, of the elements of the offense charged; 3) the element differentiating the offenses is in major dispute; and 4) a jury could rationally convict the defendant of the lesser and acquit of the greater. .
discussed Cited as authority (rule) United States v. James R. Rizik
6th Cir. · 1985 · confidence medium
Berra v. United States, 351 U.S. 131, 134 (1956); Fitzgerald v. United States, 719 F.2d 1069, 1071 (10th Cir. 1983); United States v. LoRusso, 695 F.2d 45 , 52 n.3 (2d Cir. 1982), cert. denied, 460 U.S. 1070 (1983); United States v. Iron Shell, 633 F.2d 77, 88 (8th Cir. 1980), cert. denied, 450 U.S. 1001 (1981); United States v. Burns, 624 F.2d 95, 103 (10th Cir.), cert. denied, 449 U.S. 954 (1980); United States v. Lamartina, 584 F.2d 764, 766 (6th Cir. 1978), cert. denied, 440 U.S. 928 (1979).
cited Cited "see" United States v. David Bernard Abeyta
10th Cir. · 1994 · signal: see · confidence high
See Fitzgerald v. United States, 719 F.2d 1069, 1071 (10th Cir.1983); United States v. Chapman, 615 F.2d 1294, 1299 (10th Cir.), cert. denied, 446 U.S. 967 , 100 S.Ct. 2947 , 64 L.Ed.2d 827 (1980).
cited Cited "see" United States v. Daniel Chalan, Jr.
10th Cir. · 1987 · signal: see · confidence high
See Fitzgerald v. United States, 719 F.2d 1069, 1071 (10th Cir.1983).
cited Cited "see" United States v. Dennis Swingler, Jack E. Houser, Jr., Ralph W. Vicory, James D. Jahnke, Jerald W. Richardson, Larry Lee Richardson
10th Cir. · 1985 · signal: see · confidence high
See Fitzgerald v. United States, 719 F.2d 1069, 1071-1072 (10th Cir.1983).
cited Cited "see, e.g." United States v. Michael Gabriel Duran, United States of America v. Leo Herman Monroe, Sr.
10th Cir. · 1997 · signal: see, e.g. · confidence low
See, e.g., Fitzgerald, 719 F.2d at 1071 .
cited Cited "see, e.g." United States v. Duran
10th Cir. · 1997 · signal: see, e.g. · confidence low
See, e.g., Fitzgerald, 719 F.2d at 1071 .
cited Cited "see, e.g." United States v. Pamela Jones, Katresa Marie Johnson, Mark J. Scott, Jr.
10th Cir. · 1995 · signal: see, e.g. · confidence medium
See, e.g., Fitzgerald v. United States, 719 F.2d 1069, 1070 (10th Cir.1983) (admission of expert testimony establishing that drugs in questions had aggregate street value of $18,400).
cited Cited "see, e.g." United States v. Eric Sanford Johnson, (Two Cases)
10th Cir. · 1985 · signal: see also · confidence low
See also Fitzgerald v. United States, 719 F.2d 1069 (10th Cir.); United States v. McManaman, 606 F.2d 919 (10th Cir.).
discussed Cited "see, e.g." United States v. Cornelius Franklin
8th Cir. · 1984 · signal: see also · confidence medium
See also United States v. Fitzgerald, 719 F.2d 1069 at 1072 (10th Cir.1983) (possession of 33 grams of 70% pure amphetamine and 25 grams of 47% pure cocaine, with an aggregate value of $18,400, and sensitive weighing scales supported inference of intent to distribute); United States v. Gooding, 695 F.2d 78, 84 (4th Cir.1982) (possession of 25.65 grams of 41% pure cocaine worth $6,000 “packaged in a way typical ... of the packaging used by narcotics distributors to maintain the drug’s texture” supported inference of intent to distribute); United States v. Marszalkowski, 669 F.2d 655, 662 …
Kenneth FITZGERALD, Appellant,
v.
UNITED STATES of America, Appellee
82-2212.
Court of Appeals for the Tenth Circuit.
Oct 25, 1983.
719 F.2d 1069
James H. Barrett, Trierweiler, Bayless, Barrett & McCartney, Cheyenne, Wyo., for appellant., David A. Kern, Asst. U.S. Atty., Cheyenne, Wyo. (Richard A. Stacy, U.S. Atty., and Lisa Leschuck, Legal Intern, Dist. of Wyoming, Cheyenne, Wyo., with him on brief), for appellee.
Seth, Doyle, Miller.
Cited by 45 opinions  |  Published
Pinpoint authority: bottom 55%
[*1070] WILLIAM E. DOYLE, Circuit Judge.

Defendant was charged and convicted by a jury of two counts of possession of controlled substances with intent to distribute, in violation of 21 U.S.C. §§ 841(a), 841(b)(1)(A). This is a companion case to Seth Mason and Carl Peterson v. United States, Nos. 82-1703, 82-1704. The defendant appealed his conviction on the grounds that the evidence failed to support convictions for the offense charged. The contention is that the trial judge improperly admitted evidence seized from others, and that the trial judge erred in failing to instruct the jury on the lesser included offense of simple possession of narcotics.

First of all, there is plenty of evidence to indicate the concerted activity of Mason, Peterson and Fitzgerald. They were staying in close proximity at the motel in question and there was a great deal of local traffic of the public to and from the rooms and there was also considerable activity between the rooms of Fitzgerald and Peterson.

The first point that Fitzgerald raises is that the prosecution proved only his possession of narcotics; that the evidence was insufficient to support his conviction of possession with intent to distribute. He says that the evidence is insufficient to support a jury verdict of guilt for the offense charged. He faces the presumption that examination of evidence at this stage of the proceedings requires the court to consider the inferences to be drawn from the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Massey, 687 F.2d 1348,1350 (10th Cir.1982); United States v. Blitstein, 626 F.2d 774, 776 (10th Cir.1980), cert. denied, 449 U.S. 1102, 101 S.Ct. 898, 66 L.Ed.2d 828 (1981).

The prosecution introduced in this case approximately 25 grams of 47% pure cocaine and 33 grams of 70% pure amphetamine that police discovered in the defendant Fitzgerald’s room. Expert testimony established that these drugs had an aggregate street value of $18,400. Also introduced were sensitive scales often used to measure small quantities of drugs for sale. The motel manager testified here, as was mentioned in the other related case. Her testimony was that the defendant freely moved in and out of the rooms of Peterson and Mason, and the prosecution produced an additional $11,000 worth of drugs seized in Mason’s room. The motel manager also testified that she had overheard a telephone conversation in which Fitzgerald said on the telephone that he needed more “shit,” an expression often applied to drugs. Further testimony of the manager was that she witnessed a great deal of traffic between the rooms of Fitzgerald, Mason and Peterson.

Fitzgerald expressly objects to the receipt in evidence of the drugs that had been in Mason’s room. He alleges that the prosecution had based its case on guilt by association. Rather than that, the prosecution presented the evidence on the theory that there was an interaction of what amounted to a conspiracy between these parties. They were engaged in accomplishing the-same general objective, and the evidence supports this proposition. The amount and value of the drugs which were in Fitzgerald’s room bespeaks something more than mere possession for his own purposes. In other words, it is probable that $18,000 worth of drugs would be present for the purpose of distribution. There are cases that hold specifically that the presence of this amount of drags is, in and of itself, enough to convict on the offense of possession with intent to distribute. United States v. Davis, 582 F.2d 947, 952 (5th Cir. 1978), cert. denied, 441 U.S. 962, 99 S.Ct. 2408, 60 L.Ed.2d 1067 (1979); (possession of drugs with a street value of $5,000 is sufficient evidence to support conviction); United States v. Rodriguez, 585 F.2d 1234, 1246 (5th Cir.1978), modified on other grounds, 612 F.2d 906 (5th Cir.1980) (en banc), aff’d 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981) (“The very size of a narcotics cache can be sufficient to show intent to distribute under Section 841”). The testimony regarding the local traffic the telephone[*1071] call, and the expert testimony regarding the surprising purity of the drugs, and the introduction of the weighing scale support the proposition that the defendant was guilty of possession with intent to distribute. Indeed, there is no evidence in the record whatsoever that argues in favor of the position of the accused that he did not have the drugs for the purpose of distribution.

The defendant’s next point is that the seizure of drugs from his room, and the receipt of those drugs into evidence violated Rules 403 and 404(b) of the Federal Rules of Evidence. The former Rule provides that the trial judge may exclude relevant evidence if its probity is outweighed by its tendency to prejudice the defendant. Rule 404(b) states that the evidence of other crimes is not admissible to prove the character of a person in order to show that he acted in conformity therewith.

As to the first point mentioned, the matter is within the discretion of the judge, subject to review. United States v. Parker, 604 F.2d 1327, 1329 (10th Cir.1979); Neu v. Grant, 548 F.2d 281, 293 (10th Cir.1977). The decision of the trial court on such a matter will be reversed only on a showing of abuse of discretion. United States v. Nolan, 551 F.2d 266, 273 (10th Cir.), cert. denied, 434 U.S. 904, 98 S.Ct. 302, 54 L.Ed.2d 191 (1977). Here we find that there is no such abuse.

In the case before us the trial court did not commit error in admitting the evidence. It was plain from the evidence that this was a concerted action and thus the evidence was admissible. The fact that it damaged defendant’s case is not a ground for excluding it as prejudicial. Dollar v. Long Mfg., N.C., Inc., 561 F.2d 613, 618 (5th Cir.1977), cert. denied, 435 U.S. 996, 98 S.Ct. 1648, 56 L.Ed.2d 85 (1978). The evidence which tends to prove a companion’s crime is admissible, and in this instance, it is particularly clear that it was cogent. The drugs were not admitted to suggest that Fitzgerald owned them, or to show bad character. The testimony established that the patrons of the motel knew each other and were there together. The drugs and the- traffic involved raise the inference that distribution was their purpose. The drugs from Mason’s room were certainly related to the distribution scheme and it was not invalid to admit them into evidence. Also, it was proper to admit them under Rule 404(b) since they were admitted to show intent to distribute rather than solely to prove any criminal disposition. United States v. Naranjo, 710 F.2d 1465 at 1467 (10th Cir.1983).

Fitzgerald takes the position that the trial judge erred in failing to instruct the jury on the lesser included offense of simple possession. It is true that Fitzgerald requested an instruction for use by the jury submitting the possession only as to him. It is true that the Supreme Court has ruled that if there is a lesser crime, the defendant is entitled to an instruction on it if the evidence justifies it. Sansone v. United States, 380 U.S. 343, 349, 85 S.Ct. 1004, 1009, 13 L.Ed.2d 882 (1965) (quoting Berra v. United States, 351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013 (1956)). Essentially a defendant is entitled to an instruction on the lesser included offense if the following are satisfied:

1. A proper request.
2. The lesser included offense consists of some, but not all, of the elements of the offense charged.
3. The element differentiating the two offenses is a matter in dispute.
4. A jury could rationally convict the defendant of the lesser offense and acquit of the greater offense.

In the present case the trouble with the request that is made is that there is a dearth of evidence to establish that the defendant was guilty of simple possession rather than possession with intent to distribute. The evidence supports the offense for which he was convicted and we are not disposed to remand this case, which plainly involves distribution, for the treatment requested. The important question is whether there is sufficient evidence to justify it. We conclude that there was not. Defendant possessed $18,000 worth of drugs, he[*1072] had weighing scales, he was plainly involved with the other two defendants; there was plenty of traffic to his room; there is a basis for inferring intent to distribute. There is a surprising lack of evidence supporting a mere possession charge. If this is to be a viable dispute, there should be some evidence which tends to support simple possession. United States v. Rogers, 504 F.2d 1079, 1082 (5th Cir.1974), cert. denied 422 U.S. 1042, 95 S.Ct. 2655, 45 L.Ed.2d 693 (1975). See also United States v. Collins, 652 F.2d 735 (8th Cir.1981), cert. denied, 455 U.S. 906, 102 S.Ct. 1251, 71 L.Ed.2d 444 (1982).

Based upon consideration of the evidence in the case, we conclude that the trial judge was correct in denying the defendant’s requested instructions.

The judgment of the district court is affirmed.