                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-14-2008

USA v. Lewis
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1259




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                                                                   NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                       No. 06-1259


                            UNITED STATES OF AMERICA

                                             v.

                                    DUJANN LEWIS,
                                              Appellant


                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                           D.C. Criminal No. 03-cr-00216-1
                       District Judge: Honorable Barclay Surrick


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  November 9, 2007

        Before: SCIRICA, Chief Judge, AMBRO and JORDAN, Circuit Judges.

                                 (Filed: January 14, 2008)


                               OPINION OF THE COURT


SCIRICA, Chief Judge.

       DuJann Lewis was charged with: conspiracy to possess with intent to distribute in

excess of fifty grams of cocaine base (“crack”) and to possess with intent to distribute

marijuana, 21 U.S.C. § 846 (Count 1); possession with intent to distribute or aiding and
abetting the possession with intent to distribute in excess of fifty grams of cocaine base

(“crack”), 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2 (Count 2); possession

with intent to distribute or aiding and abetting the possession with intent to distribute

marijuana, 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2 (Count 3); carrying a

firearm or aiding and abetting the carrying of a firearm during and in relation to a drug

trafficking crime, 18 U.S.C. § 924(c)(1)(A) and 18 U.S.C. § 2 (Count 4). Following a

four-day trial, the jury found Lewis guilty of Counts 1 through 4.

       Lewis challenges his convictions contending the evidence was insufficient to

support the verdict under Counts 1 through 4. We will affirm.

                                              I.

       Responding to a complaint about noise emanating from Apartment J-19 of the

Bishop Hill Apartments, Officer Brian Duffy encountered a woman with a young child at

the apartment door. At roughly the same time, David Haley, a maintenance worker, saw a

man jump from the balcony of Apartment J-19 and run away. Haley also saw two heads

“pop out” of the bedroom window of Apartment J-19 and retreat back inside. Haley

reported this incident to Lane Murphy, a security officer at the apartment complex, who

called the police.

       While talking to the police, Murphy saw Lewis and Lamar Edge leave Building J.

Murphy recognized both as men who would “come and go, all hours of the night,” from

Building J. Lewis was carrying boxes, and Edge was carrying a shopping bag from

Modell’s Sporting Goods. Murphy observed the two men place the boxes and the bag

                                              2
into the trunk of a blue Oldsmobile parked outside of Building J. Lewis returned to the

building while Edge parked the car between Buildings K and L.

       Murphy described this conduct to Officer William Tobin and directed him to the

blue Oldsmobile. As Officer Tobin examined the license plate, Edge approached the car

and stopped suddenly when he saw Officer Tobin. Edge fled, ignoring Officer Tobin’s

commands to stop. Officer Tobin pursued Edge on foot and observed Edge jump into the

back of a maroon Buick.

       After a car chase, Officer Tobin, with the assistance of Officer Duffy, captured all

three occupants of the car: Edge, Lewis and Rashaun Yeiser. Placing them in custody,

the police returned to Apartment J-19 to check on the safety of the woman occupying the

apartment. Upon entering, Detective James Frey saw several containers in plain view

which appeared to hold marijuana. With this information, the officers obtained a search

warrant for drugs and drug paraphernalia. Executing the warrant, the officers found two

digital scales, various containers filled with marijuana, large quantities of bags commonly

used to package drugs, $6,000 in cash, and a box of nine millimeter handgun ammunition.

       The officers also secured a warrant for the blue Oldsmobile. Executing the search

warrant, the officers found the plastic Modell’s bag earlier carried by Edge as well as the

boxes Lewis carried out of the building and placed in the trunk. The Modell’s bag held

one bag of crack cocaine, 341 bags of marijuana, white boxes holding plastic containers

filled with marijuana, and a semi-automatic pistol loaded with fifteen rounds of nine



                                             3
millimeter ammunition. The boxes held plastic cubes containing marijuana and a large

quantity of clear plastic containers.

                                             II.

       When reviewing a challenge to the sufficiency of evidence, we review the

evidence in the light most favorable to the government and uphold the conviction “if any

rational trier of fact could have found the essential elements of the offense beyond a

reasonable doubt.” United States v. Gibbs, 190 F.3d 188, 197 (3d Cir. 1999); see also

Rieger, 942 F.2d at 232 (“We ‘must sustain the verdict if there is substantial evidence,

viewed in the light most favorable to the [g]overnment, to uphold the jury’s decision.’”

(quoting Burks v. United States, 437 U.S. 1, 17 (1978)). However, when a defendant fails

to renew his motion for judgment of acquittal at the end of the defense’s case, the

defendant “has failed to preserve this issue for appeal.” United States v. Anderson, 108

F.3d 478, 480 (3d Cir. 1997). “Accordingly, the alleged insufficiency of the evidence

with respect to the essential elements of the offense must constitute plain error in order to

warrant reversal.” Id. (citing Fed. R. Crim. P. 52(b)).

       After the close of the government’s case-in-chief, Lewis moved for judgment of

acquittal under Fed. R. Crim. P. 29. However, Lewis did not file a motion to set aside the

jury verdict under Rule 29. Since, as discussed infra, the evidence supports the

conviction, Lewis cannot establish plain error.




                                              4
       Lewis contends there was insufficient evidence that he knowingly possessed the

drugs1 or that he agreed, knew or facilitated the underlying substantive offenses. Both

assertions lack merit.

                                              A.

       Lewis contends he cannot be convicted under Counts 1 and 3 of the indictment

because he did not knowingly possess the required items. Knowing possession can be

established when the defendant has actual possession. See, e.g., United States v.

Blackston, 940 F.2d 877, 883 (3d Cir. 1991) (“A person who knowingly has direct

physical control over a thing, at a given time, is then in actual possession of it.”). There is

substantial evidence from which a rational jury could conclude that Lewis knowingly

possessed the drugs.

       Although Lewis carried closed boxes, there is substantial evidence to support the

inference that Lewis knew the boxes contained marijuana. First, Lewis walked to the car

and loaded the trunk simultaneously with Edge.2 Further, Lewis had access to the

contents of the boxes. There is no evidence suggesting that the boxes were sealed or


   1
    Counts 2 and 3 require proof that the principal knowingly possessed the drugs at
issue. See 21 U.S.C. § 841(a)(1). Under Count 4, the government must prove that the
principal knowingly possessed the firearm at issue. See 18 U.S.C. § 924(c).
   2
    Edge carried a white Modell’s bag containing marijuana, crack cocaine, and a loaded
handgun from the J-Building to the trunk of the blue Oldsmobile. The bag was made of
thin plastic material and was open at the top. A person handling such a bag would be able
to see and know the bag’s contents, and it may fairly be inferred that someone walking
with the person holding the bag would have an opportunity to see its contents, as would
someone seeing the bag lying open in the trunk of the car.

                                              5
inaccessible. Second, evidence presented at trial linked Lewis and the blue Oldsmobile to

Apartment J-19.3 Anyone in Apartment J-19 would have known and understood the

apartment to be a staging ground for drug distribution. Packages of marijuana, placed in

the hall closet and on the television stand, were in plain view. Further, police found a

digital scale and box of 9 millimeter shells in the dining room.

       Thus, there was substantial evidence for a rational jury to conclude beyond a

reasonable doubt that Lewis knowingly possessed drugs.

                                             B.

       Lewis contends there is insufficient evidence to convict on Count 1 (conspiracy to

possess with intent to distribute crack cocaine and marijuana), Count 2 (aiding and

abetting the possession with intent to distribute in excess of fifty grams of crack cocaine),

and Count 4 (aiding and abetting the carrying of a firearm during and in relation to a drug

trafficking crime) because the government failed to prove an agreement or knowledge the

containers they carried contained drugs and the gun.

       “The elements of a conspiracy may be proven entirely by circumstantial evidence,

but each element of the offense must be proved beyond a reasonable doubt.” United

States v. Cartwright, 359 F.3d 281, 286 (3d Cir. 2004) (quoting United States v. Wexler,

838 F.2d 88, 90 (3d Cir. 1988)). “One of the requisite elements the government must


   3
     After Haley observed a person jump from the Apartment J-19 balcony, he saw two
black males look out the window of Apartment J-19. Soon thereafter, Edge and Lewis
left Building J and loaded the trunk of the blue Oldsmobile. In addition, documents
identifying Yeiser were found in both the blue Oldsmobile and Apartment J-19.

                                              6
show in a conspiracy case is that the alleged conspirators shared a ‘unity of purpose’, the

intent to achieve a common goal, and an agreement to work together toward the goal.”

Cartwright, 359 F.3d at 286 (quoting Wexler, 838 F.2d at 90-91). “In order for us to

sustain a defendant’s conviction for conspiracy, the government must have put forth

evidence tending to prove that defendant entered into an agreement and knew that the

agreement had the specific unlawful purpose charged in the indictment.” Cartwright, 359

F.3d at 286-87 (quoting United States v. Idowu, 157 F.3d 265, 268 (3d Cir. 1998)).

       There is substantial evidence from which a rational jury could have concluded that

Lewis was a participant in a conspiracy to possess with the intent to distribute crack

cocaine and marijuana. As noted, Lewis and his co-conspirator Edge knowingly and

actually possessed the drugs.4 Further, Lewis acted in concert with Edge to move the


   4
    Lewis attempts to analogize to cases finding insufficient evidence to support a
conspiracy conviction because the defendant was unaware of the contents of the illegal
transaction. See Cartwright, 359 F.3d at 290-91 (finding no evidence in the record that
defendant had knowledge of the nature of the transaction and noting the lack of evidence
that defendant had ever been in possession of the cocaine); Idowu, 157 F.3d at 268-270
(finding the evidence insufficient to support the inference that defendant knew the
transaction involved drugs because defendant never heard specific reference to the subject
matter, nor did he see the drugs); United States v. Salmon, 944 F.2d 1106, 1112, 1114 (3d
Cir. 1991) (finding no evidence in the record that defendant Fitzpatrick, asked “to watch
[co-defendant’s] back,” knew the transaction concerned drugs); Wexler, 838 F.2d at 92
n.2 (finding insufficient evidence to support the conclusion that defendant knew the
contents “behind a closed truck door which he neither drove nor rode in”); United States
v. Terselich, 885 F.2d 1094, 1098 (3d Cir. 1989) (finding no evidence that defendant,
“shar[ing] driving chores and lodging with the driver of the vehicle,” knew that a secret
compartment in the trunk of the car contained drugs); United States v. Cooper, 567 F.2d
252, 254-55 (3d Cir. 1977) (finding insufficient evidence to support the conspiracy
conviction because no evidence suggested that defendant knew or had access to the
                                                                              (continued...)

                                             7
drugs and the firearm from Apartment J-19 – a staging ground for drug distribution – to

the blue Oldsmobile. Edge drove the Oldsmobile away from Building J, and Lewis, with

the assistance of Edge and Yeiser, fled from the police. Based on his conduct and

knowing possession of the drugs, a reasonable jury could rationally conclude Lewis

intentionally entered into an agreement with the specific purpose to distribute crack

cocaine and marijuana.5




   4
    (...continued)
contents of the padlocked rear of a truck transporting marijuana). Each is distinguishable
because the evidence supports an inference that Lewis saw drugs in apartment J-19 and
was in actual possession of drugs. Further, defendants in the aforementioned cases were
conducting surveillance or performing a secondary function. See Cartwright, 359 F.3d at
286 (“lookout”); Idowu, 157 F.3d at 267 (“driver” who carried the money); Wexler, 838
F.2d at 91 (“lookout”); Salmon, 944 F.2d at 1114 (“surveillance”); Terselich, 885 F.2d at
1098 (passenger who “shared driving chores and lodging” with driver); Cooper, 567 F.2d
at 254 (passenger who shared hotel room with convicted co-defendant). In contrast, the
conduct of Lewis suggests a more involved role in the distribution of drugs.
   5
    “An aiding-and-abetting conviction requires that another committed the substantive
offense and that the one charged with aiding and abetting knew of the substantive-offense
commission and acted with the intent to facilitate it.” Salmon, 944 F.2d at 1113 (citing
United States v. Dixon, 658 F.2d 181, 189 n.17 (3d Cir. 1981)). “[A]cting with the intent
to facilitate the substantive offense requires that one acted with the ‘intent to help those
involved with a certain crime.’” Salmon, 944 F.2d at 1113 (quoting Wexler, 838 F.2d at
92) (emphasis omitted). See also United States v. Gordon, 290 F.3d 539, 547 (3d
Cir.2002) (“[A] defendant can be convicted of aiding and abetting a violation of §
924(c)(1) without ever possessing or controlling a weapon if the defendant's actions were
sufficiently intertwined with, and his criminal objectives furthered by the actions of the
participant who did carry and use the firearm.”). For the same reasons stated supra, we
find there was sufficient evidence to support a conviction on aiding and abetting grounds
(Counts 2 and 4).

                                             8
                                   III.

We will affirm the judgment conviction of DuJann Lewis on all counts.




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