NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 10-1051
_____________
UNITED STATES OF AMERICA
v.
JERRY STEVENS,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(No. 2-08-cr-00625-002)
District Judge: Hon. Jan E. Dubois
Submitted Pursuant to Third Circuit LAR 34.1(a)
Monday, October 3, 2011
Before: McKEE, Chief Judge, FUENTES, Circuit Judge,
and COWEN, Circuit Judge
(Opinion Filed: November 10, 2011)
OPINION
McKEE, Chief Judge.
Jerry Stevens appeals his conviction arguing that the evidence admitted at trial was
insufficient to support his conviction. For the reasons set forth below, we will affirm.
I.
On April 18, 2006, Philadelphia Police Department Narcotics Strike Force officers
set up surveillance in the 1200 block of South 17th Street, within 1,000 feet of the Barratt
Middle School at 1599 Wharton Street. Officer Charles Myers monitored the block from
the roof of a one-story bar. Officer Myers observed Stevens and co-defendant Ware
engage in a conversation with an unknown male after which the male handed Stevens
money. Ware then retrieved what appeared to be a clear baggie from a compartment on
the driver’s side door of a silver Monte Carlo parked nearby. Ware removed a small
object from the baggie and handed it to the unknown male who left. Ware then returned
the baggie to the Monte Carlo.
Shortly thereafter, another unknown male approached Stevens. The male spoke
with Stevens and handed him money. Stevens then shouted something to Ware who
again retrieved a clear baggie from the driver’s side door compartment of the Monte
Carlo. Ware removed a small object from the baggie and handed it to the unknown male
who also left, and Ware placed the baggie in his pocket.
A few minutes later, a white Ford Explorer pulled up, and Stevens spoke with the
driver. Thereafter, Officer Myers heard Stevens yell at Ware: “It’s hot. They’re round
the corner.” Ware and Stevens then walked away from the area, and Officer Myers
instructed his backup officers to stop them. As uniformed officers approached the two
men, Ware removed a baggie from his pocket and dropped it on the sidewalk.
Both Ware and Stevens were stopped by police. Police recovered $10 and keys to
the Monte Carlo from Ware and $42 from Stevens. After Ware was placed in custody,
Officer Myers sent another officer to the location where Ware had discarded the baggie.
There, the officer found a clear baggie containing eight red-tinted packets of crack
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cocaine. The two unknown males who had engaged in transactions with Ware and
Stevens were never apprehended by police.
Thereafter, a jury convicted Stevens of conspiracy to possess cocaine base with
intent to distribute in violation of 21 U.S.C. § 846, and aiding and abetting possession of
cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and
18 U.S.C. § 2, respectively, and possession of cocaine base within 1,000 feet of a school
with intent to distribute and aiding and abetting, in violation of 21 U.S.C. § 860 and 18
U.S.C. § 2, respectively. This appeal followed. 1
II. Sufficiency of the Evidence
Because Stevens failed to preserve his sufficiency claim by filing a Rule 29
motion for judgment of acquittal before the district court, we review his claim for plain
error. United States v. Wolfe, 245 F.3d 257, 261 (3d Cir. 2001). “A conviction based on
insufficient evidence is plain error only if the verdict constitutes a fundamental
miscarriage of justice.” United States v. Thayer, 201 F.3d 214, 219 (3d Cir. 1999)
(internal quotation marks omitted) (quoting United States v. Barel, 939 F.2d 26, 37 (3d
Cir. 1991)). In determining if the evidence is sufficient to sustain a conviction, “[w]e
review the record in the light most favorable to the prosecution to determine whether any
rational trier of fact could have found proof beyond a reasonable doubt based on the
available evidence.” Wolfe, 245 F.3d at 261 (citing Jackson v. Virginia, 443 U.S. 307,
319 (1979)).
1
The district court had jurisdiction under 18 U.S.C. § 3231. We have appellate
jurisdiction under 28 U.S.C. § 1291.
3
Stevens relies on United States v. Thomas, 114 F.3d 403 (3d Cir. 1997), in
asserting that since he never handled the narcotics, the evidence only establishes that two
unknown men handed him money for unknown reasons. He argues the fact the
Government’s failed to arrest the alleged purchasers undermines the Government’s
attempt to prove that he accepted money from them for cocaine or cocaine base.
To establish a conspiracy, the government must “prove beyond a reasonable doubt
that the defendant had knowledge of the particular illegal objective contemplated by the
conspiracy.” United States v. Cartwright, 359 F.3d 281, 287 (3d Cir. 2004) (internal
quotation mark omitted) (quoting United States v. Idowu, 157 F.3d 265, 266-67 (3d Cir.
1998)). We have “[consistently] overturned convictions for conspiracy in drug
possession and distribution because of the absence of any evidence that the defendant had
knowledge that drugs were involved.” Id. (alteration in original) (internal quotation
marks omitted) (quoting United States v. Mastrangelo, 172 F.3d 288, 293 (3d Cir. 1999)).
Similarly, in order to convict a defendant of aiding and abetting the possession and
distribution of drugs, the Government must produce sufficient evidence that the
defendant “had knowledge of the [drugs], had knowledge that [the co-defendant]
intended to distribute or possess [drugs], or purposefully intended to aid others in
committing the crime alleged.” Id. (alteration in original) (internal quotation mark
omitted) (quoting United States v. Salmon, 944 F.2d 1106, 1114 (3d Cir. 1991)).
Circumstantial evidence alone is sufficient to support an aiding and abetting conviction
“as long as there is a logical and convincing connection between the facts established and
the conclusion inferred.” United States v. Mercado, 610 F.3d 841, 846 (3d Cir. 2010)
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(internal quotation marks omitted) (quoting United States v. Soto, 539 F.3d 191, 194 (3d
Cir. 2008)).
We overturned the conviction in Thomas because the evidence only established
that the defendant went into a hotel room to confirm the existence of a suitcase. There
was no evidence that he knew the suitcase contained drugs. Thomas, 114 F.3d at 404-06.
Likewise, in Cartwright, the evidence only established that Cartwright stood
approximately 100 feet from where his co-defendant was selling drugs and acted as a
lookout. Cartwright, 359 F.3d at 284. Cartwright did not interact with the buyers in any
way, and the evidence did not support an inference that he knew the transaction involved
narcotics instead of some other contraband. Id. at 288.
Here, however, a reasonable juror could have inferred that the small objects the
two unknown men received from Ware were packets of crack cocaine, and Stevens’
conduct certainly allows a reasonable juror to conclude beyond a reasonable doubt that he
knew that the transaction involved crack cocaine even though he did not personally
handle the drugs. Indeed, it is difficult to make sense of the behavior of Ware and
Stevens without concluding that they were knowingly involved in drug sales.
IV. Conclusion
For the reasons stated above, we will affirm.
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