On Appeal from the District Court of the Virgin Islands. (D.C. Criminal No. 91-00039-02)
Before: Sloviter, Chief Judge, Mansmann and Weis, Circuit Judges
Gregory Frorup was charged with two counts of possession with intent to distribute cocaine under 21 U.S.C. § 841(a) (1988 & Supp. 1991), and one count of conspiracy to distribute cocaine under 21 U.S.C. §§ 841(a), 846. The jury found him guilty on one count of the lesser included offense of simple possession. Frorup appeals his conviction, contending that there was insufficient evidence for the jury to convict. Because we find that there was ample evidence to sustain the conviction, we will uphold the jury's verdict.
On the morning of March 9, 1991, Special Agent Junia Tyson, working undercover for the Virgin Islands Narcotics Strike Force in St. Croix, met with Frorup at the John F. Kennedy Projects in Christiansted. Frorup told Tyson that he knew a person from whom Tyson could purchase drugs and that Frorup could arrange a purchase of crack cocaine. Tyson, who was outfitted with a listening device and $4,500 in government cash, met Frorup at the Kennedy Projects that evening.
Frorup first borrowed Tyson's car in order to pick up drugs for Tyson, but returned a few minutes later stating that he was unable to get drugs from that source that night. Frorup then suggested that he and Tyson travel to Estate St. John to get cocaine. When they arrived at a residence at Estate St. John, they remained in the car and were approached by Clarence Williams. Williams spoke with Frorup for a few moments, announced that he had four and one-half ounces of cocaine to sell, and told Tyson that the cocaine would cost three thousand dollars. While Williams returned to the house, Tyson proceeded to count out three thousand dollars in cash which he gave to Frorup. Williams returned to the car and Frorup handed Williams the money. Williams then handed the drugs to Frorup who handed the drugs to Tyson. A similar transaction occurred on March 30, 1991.
Frorup and Williams were charged in a three-count indictment under 21 U.S.C. §§ 841(a), 846 for conspiracy to distribute a controlled substance during March, 1991 (Count I), and under 21 U.S.C. § 841(a) for possession of a controlled substance with intent to distribute on or about March 9, 1991 (Count II), and possession of a controlled substance with intent to distribute on or about March 30, 1991 (Count III).*fn1 The jury acquitted Frorup on Counts I and III. As to Count II, the jury acquitted Frorup on the distribution charge but found him guilty of simple possession, the lesser included offense under 21 U.S.C. § 841(a).*fn2 He was sentenced to 169 months in prison.
In reviewing a jury verdict for insufficiency of the evidence, this court must consider the evidence in the light most favorable to the government and affirm the judgment if there is substantial evidence from which any rational trier of fact could find guilt beyond a reasonable doubt. Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (1942); United States v. Aguilar, 843 F.2d 155, 157 (3d Cir.), cert. denied, 488 U.S. 924 (1988).
Frorup's only contention on appeal is that inherent in the definition of "possession" is an intent to retain the object for some period of time. The evidence was insufficient, he contends, to demonstrate that the act of handing drugs from one person to another constituted "possession" because Frorup did not retain the drugs for a sufficient period of time and because he did not exercise control over the drugs during the few moments ...