## Facts

- DEA Agent Jason Cloutier went undercover to a nightclub and asked a male patron for cocaine.
- The patron sold Cloutier two small baggies of cocaine for $40.
- Cloutier observed the seller wearing a white hooded sweatshirt and having a thin goatee and a teardrop facial tattoo.
- About an hour later, Cloutier and another agent saw the patron enter the passenger seat of a white Chevy Blazer.
- Officers stopped the Blazer shortly after it left the club and identified the passenger as Juvenal Ambriz.
- A consensual search of Ambriz’s person revealed six additional baggies of cocaine similar in manufacture, contents, and quantity to those sold to Cloutier.
- Officers seized the cocaine but released Ambriz at that time to protect the undercover operation.
- Ambriz was later indicted for distribution of a controlled substance under 21 U.S.C. § 841(a)(1).
- At trial, Cloutier identified Ambriz as the seller; the district court denied (i) a requested lesser-included-offense instruction on simple possession under 21 U.S.C. § 844(a) and (ii) a Rule 403 motion to exclude the six additional baggies.
- A jury convicted Ambriz; the district court sentenced him to 18 months’ imprisonment and three years of supervised release.

## Issues

1. Whether simple possession under 21 U.S.C. § 844(a) is a lesser-included offense of distribution under 21 U.S.C. § 841(a)(1), requiring a lesser-included-offense jury instruction.
2. Whether admitting evidence of six additional baggies of cocaine found on Ambriz’s person was an abuse of discretion under Federal Rule of Evidence 403.

## Decision

- The Fifth Circuit affirmed.
- Simple possession under § 844(a) is not a lesser-included offense of distribution under § 841(a)(1), so the district court properly refused the requested instruction.
- The district court did not abuse its discretion under Rule 403 by admitting the six additional baggies because their probative value outweighed any unfair prejudice.

## Legal Principles

- Under the elements test for lesser-included offenses, an instruction is warranted only if the lesser offense’s elements are a subset of the charged offense’s elements.
- Distribution under § 841(a)(1) can be proved without proving possession; a defendant may commit distribution by causing or facilitating a transfer without having “ownership, dominion, or control” over the drugs.
- Rule 403 rulings are reviewed for abuse of discretion and reversed only for clear error affecting substantial rights.
- Evidence closely tied to the charged conduct and probative of identity and participation may be treated as intrinsic to the offense, supporting admission when probative value is not substantially outweighed by unfair prejudice.

## Conclusion

The Fifth Circuit upheld Ambriz’s distribution conviction, ruling that possession is not a lesser-included offense of distribution under the statutory-elements test and that the trial court permissibly admitted evidence of additional, similar cocaine baggies found during the traffic stop.


United States v. Ambriz, 727 F.3d 378 (5th Cir. 2013)