09-2526 United States of America v. Joseph Jamene Moore

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
09-2526
__________
UNITED STATES OF AMERICA
v.
JOSEPH JAMENE MOORE,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Crim. No. 1-07-00153-3)
Honorable Sylvia H. Rambo, District Judge
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 9, 2010
BEFORE: MCKEE, BARRY, and GREENBERG, Circuit Judges
(Filed: March 25, 2010)
OPINION OF THE COURT
GREENBERG, Circuit Judge.
This matter comes on before the Court on defendant Joseph Moore’s appeal from a
judgment of conviction and sentence entered on May 22, 2009, in this crack cocaine case.
At a trial with Jamel E. Easter and Carlton Easter as co-defendants, a jury found Moore

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guilty of possession with intent to distribute 50 grams and more of crack cocaine in
violation of 21 U.S.C. § 841(a) (Count II) and of conspiracy to possess with intent to
distribute 50 grams and more of crack cocaine in violation of 21 U.S.C. § 846 (Count IV).
After his conviction Moore moved for a judgment of acquittal or a new trial on the
grounds that the evidence was insufficient to support the verdict and the verdict was
against the weight of the evidence. The District Court denied the motions and sentenced
Moore to consecutive custodial terms of 120 months on each count for a total of 240
months to be followed by five-year concurrent terms of supervised release.
Moore appeals, contending that the government did not prove all of the elements
of each of the two offenses beyond a reasonable doubt. He also contends that the District
Court erred in denying his motion for a new trial as the verdict was against the weight of
the evidence. The District Court had jurisdiction under 18 U.S.C. § 3231 and we have
jurisdiction under 28 U.S.C. § 1291.
The case arose from a reverse sting in which Jamel Easter attempted to purchase
crack cocaine from an informant working with the FBI. Though Jamel Easter originally
told the informant that he wanted to purchase 18 ounces of crack, he subsequently told the
informant that he needed only nine ounces. After the informant notified the FBI of Jamel
Easter’s attempt to purchase the drug the government arranged a sting to ensnare him.
Jamel Easter drove to the site for the delivery in Harrisburg, Pennsylvania, in an
automobile in which he had three passengers, Carlton Easter, Moore, and another male

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who has not been apprehended but who has been identified as Victor Patterson.
The informant was waiting at the site and got into the automobile but Carlton
Easter then observed law enforcement officers in the area that he believed were
conducting surveillance. When he told the automobile’s other occupants of his
observations, Jamel Easter moved the automobile to another location. Then Carlton
Easter gave the informant $6,000 in cash and said that the drugs were being purchased for
him. After the informant with Moore’s help counted the money, FBI and local officers
attempted to arrest the automobile’s occupants, but Jamel Easter initially frustrated that
attempt by driving away. During the automobile flight Moore, who had possession of a
.40 caliber Glock pistol, threw it to Jamel Easter who took control of it.
The automobile flight was not successful for as Jamel Easter drove away the
automobile was damaged rendering it inoperable. Then Moore, Jamel Easter, and
Patterson left the automobile and continued to flee. While fleeing Jamel Easter hid the
pistol and bag that he was carrying in a ditch. When the automobile’s other occupants
fled, Carlton Easter, who had been disabled in an earlier incident, remained behind. The
officers recovered the pistol and the bag that Jamel Easter had hidden which contained
83.7 grams of crack cocaine and a digital scale. The officers also searched Jamel Easter’s
automobile and found a bag in the back seat containing 4.7 grams of crack, a box of
sandwich bags, and some marijuana. Though Patterson escaped, the pursuing officers
arrested Jamel Easter and Moore who sought refuge in an abandoned house. Other

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officers arrested Carlton Easter.
There is no doubt but that the evidence plainly showed that Moore was part of a
conspiracy to possess with intent to distribute 50 grams and more of crack cocaine. As
we explained in United States v. Pressler, 256 F.3d 144, 149 (3d Cir. 2001), and United
States v. Gibbs, 190 F.3d 188, 197 (3d Cir. 1999), two cases that the parties cite, to prove
that there was a criminal conspiracy the government must establish that the co-
conspirators had a unity of purpose, an intent to achieve a common goal, and an
agreement to work together toward that goal. In assessing the adequacy of the evidence
we review the evidence in the light most favorable to the government as the verdict
winner and consider both direct and circumstantial evidence. See United States v. Wert-
Ruiz, 228 F.3d 250, 256 (3d Cir. 2000). Here Jamel Easter arranged for the purchase of
the crack and Carlton Easter said the drugs were for him. Furthermore, Carlton Easter
had possession of the cash to pay for the drugs and he identified law enforcement officers
at the place that the transaction was to be completed, thus enabling Jamel Easter to move
in an attempt to avoid them. Of course, the nine ounces of crack that the conspirators
attempted to purchase was far in excess of the 50 grams charged in the indictment. It is
also significant that the conspirators were attempting to acquire such a large quantity of
crack that it is reasonable to infer that the attempted purchase was not to be for their
personal use. See United States v. Rodriguez, 961 F.2d 1089, 1092 (3d Cir. 1992).
Moore implicated himself in the conspiracy by bringing a pistol to the scene of the

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projected crack transaction. It is well known that drug transactions are dangerous
endeavors and, accordingly, the jury could draw a logical inference that Moore was there
to protect the purchasers. Furthermore, he engaged as an active participant in the
attempted purchase when he helped the informant count the money. Thus, Moore’s role
furthering the goal of the conspiracy was active not passive and it is clear that the
evidence supported his conspiracy conviction.
For the government to prove the possession with intent to distribute the crack
cocaine count it was required to establish that Moore knowingly possessed or
constructively possessed the crack cocaine and did so with the intent to distribute it. Here
Moore came to the scene of the contemplated purchase armed and, as we have indicated,
it is fair to draw an inference that he was there to protect the transaction. Though Jamel
Easter had physical possession of the crack that he brought to the scene of the purchase
but discarded during his flight, the evidence supported the conclusion that the passengers
in the automobile were cooperating in a crack business. Consequently it was reasonable
for the jury to infer that the passengers, including Moore, had dominion and control
constructively through the other conspirators over the crack that they already had acquired
and was part of their inventory. See United States v. Martorano, 709 F.2d 863, 866 (3d
Cir. 1983). Thus, the evidence supported the possession charge against Moore.
With respect to constructive possession we point out that the District Court
instructed the jury that:

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If an individual has the ability to exercise substantial control over an
object that he does not have in his physical custody, then he is in possession
of that item. An example of this from every day experience would be a
person’s possessions [sic] of items which he keeps in a safety deposit box in
his bank. Although the person does not have physical custody of these
items, he exercises substantial control over them, so he has what is known
as constructive possession of them.
App. at 521-22. Accordingly, the jury was free to consider the constructive possession
theory of the possession with intent to distribute charge and, as we explained in
Martorano, could predicate a conclusion that Moore constructively possessed the crack
based on the ample circumstantial evidence against him. See 709 F.2d at 866.
For the foregoing reasons the judgment of conviction and sentence entered on May
22, 2009, will be affirmed.

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