United States v. Crittenden
In United States v. Crittenden, —- F.4th —-, No. 23-50007 (5th Cir. Sept. 24, 2024), the Fifth Circuit affirmed the defendant’s drug conviction despite his claim that the district court had erred by accepting his waiver of conflict-free counsel. The Fifth Circuit also rejected his argument that the jury should have received an instruction on a lesser included offense, although Judge Dennis dissented from that second holding.
Before trial, the Government notified the court that Crittenden’s retained counsel might have a conflict of interest because he also represented a defendant who had pled guilty to drug charges in another case. The other defendant had been in contact with Crittenden’s codefendant in the days leading up to her arrest, and those two may have shared the same drug supplier. As a result, it was possible that Crittenden’s defense could lead to a conflict of interest. The Government argued that the potential conflict could be waived, but it asked the court to inquire into the situation.
The district court properly held a hearing and informed Crittenden that he was entitled to conflict-free counsel. See United States v. Garcia, 517 F.2d 272 (5th Cir. 1975), abrogated on other grounds by Flanagan v. United States, 465 U.S. 259, 263 & 263 n.2 (1984). Crittenden’s lawyer confirmed he had already reviewed these rights with Crittenden “in detail,” and he outlined his reasons for thinking there was a low risk of an actual conflict. Crittenden confirmed that he understood everything, and he confirmed that he wanted to keep the same counsel.
Holding 1: The district court did not err by accepting Crittenden’s waiver of the potential conflict of interest. Even if the potential conflict “ripened into an actual conflict during trial,” Crittenden had “voluntarily, knowingly, and intelligently waived his right to conflict-free counsel,” both verbally and in writing. The district court could not have anticipated and detailed every possible “snare” posed by the conflict, and it was not required to do so. Moreover, Crittenden failed to “meaningfully argue” that the conflict was so severe as to undermine the judicial system’s integrity or render his trial inherently unfair.
Holding 2: The district court did not err by denying Crittenden’s request that the jury be instructed on the lesser included offense of simple possession. Crittenden would have been entitled to a lesser-included charge if (1) the elements of simple possession were a subset of the elements of possession with intent to distribute, and (2) based on the evidence presented at trial, a rational jury could have found him guilty of simple possession yet acquitted him of possession with intent to distribute. See United States v. Browner, 889 F.2d 549, 550–51 (5th Cir. 1989). The parties agreed that the first prong was satisfied, see United States v. Mays, 466 F.3d 335, 342 (5th Cir. 2006), so the Fifth Circuit focused on the second.
When a district court errs on the first prong and does not make a finding on the second, the Fifth Circuit will review “the record as a whole to determine whether a rational jury could convict a defendant of the lesser offense yet acquit him of the greater.” Here, Crittenden possessed about 10 pounds of methamphetamine, which was worth approximately $35,000. That quantity “exceeds the realm of conceivable personal use and, along with its value, is indicative of distribution.” Additionally, Crittenden selected the “exact drug and quantity” his codefendant had agreed to sell, which indicated his intent to aid in distribution.
Separate Opinion: Judge James L. Dennis wrote a separate opinion, in which he concurred with the first holding but dissented from the second. In his view, a rational jury could have found Crittenden guilty of simple possession but acquitted him of intending to distribute, so Crittenden was entitled to an instruction on the lesser offense of simple possession. Notably, the district court at trial “voiced serious concerns about the intent to distribute element of Count 2,” which strongly suggested a rational jury could have done the same. Judge Dennis summarized his position this way:
“Although the evidence is undoubtedly sufficient to convict Crittenden of possession with intent to distribute, the issue is whether a rational jury nonetheless could acquit him of the greater offense and find him guilty of simple possession. The majority flips the standard on its head by only searching for evidence to support the jury’s conviction. A recognition that a jury could convict on the greater offense does not negate that a jury could have failed to find Crittenden’s intent to distribute” (citations omitted).