United States v. Mark O'brien, Also Known as Pee Wee

6 F.3d 829 303 U.S.App.D.C. 370

NOTICE: D.C. Circuit Local Rule 11(c) states that unpublished orders, judgments, and explanatory memoranda may not be cited as precedents, but counsel may refer to unpublished dispositions when the binding or preclusive effect of the disposition, rather than its quality as precedent, is relevant. UNITED STATES of America v. Mark O'BRIEN, also known as Pee Wee, Appellant.

No. 92-3226.

United States Court of Appeals, District of Columbia Circuit.

Sept. 16, 1993.

Before: WALD, D.H. GINSBURG and RANDOLPH, Circuit Judges.

JUDGMENT

PER CURIAM.

1

This appeal was considered on the record from the United States District Court for the District of Columbia and the briefs filed by the parties. The court has determined that the issues presented occasion no need for an opinion. See D.C.Cir.Rule 14(c). It is 2

ORDERED AND ADJUDGED that appellant's conviction under 21 U.S.C. Sec. 860 (a) be affirmed. Appellant has failed to meet the demanding standard for overturning a guilty verdict on the grounds of insufficiency of the evidence. See United States v. Lam Kwong-Wah, 924 F.2d 298, 302 (D.C.Cir.1991). Also, the district court did not err in denying appellant's motion for judgment of acquittal. See United States v. Johnson, 952 F.2d 1407, 1409 (D.C.Cir.1992). Finally, the district court properly refused to give an instruction on the lesser included offense of simple possession because appellant's defense was a simple defense that went indivisibly to both the greater and the lesser offense, and the evidence was such that the jury could not have rationally found appellant guilty of the lesser offense. See United States v. Payne, 805 F.2d 1062, 1067 (D.C.Cir.1986).

3

The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C.Cir.Rule 15.