NOT PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS

F O R THE THIRD CIRCUIT

C a se No: 05-2062

UNITED STATES OF AMERICA

v. BILL MURRAY,

Appellant

O n Appeal from the United States District Court

f o r the Eastern District of Pennsylvania

D is tric t Judge: Honorable Bruce W. Kauffman

D is tric t Court No.: 02-cr-300-02

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

J u ly 10, 2006

B e f o re : SMITH, ALDISERT, and ROTH, Circuit Judges

(F ile d : August 16, 2006

OPINION OF THE COURT

SMITH, Circuit Judge. B ill Murray was charged with and convicted of conspiracy to possess cocaine base w ith the intent to distribute it in violation of 21U.S.C. § 846 and maintaining a location f o r the storage and distribution of a controlled substance in violation of 21U.S.C. § 8 5 6 (a )(2 ).1 The District Court sentenced Murray to two 84-month terms of imprisonment to be served concurrently, ordered six years of supervised release, and imposed a $200 s p e c ia l assessment. Following the trial, Murray moved for a judgment of acquittal under F e d e ra l Rule of Criminal Procedure 29(c), claiming that the evidence against him was in s u f f ic ie n t to sustain the conviction on either count. The District Court denied the m o tio n . Murray filed this timely appeal, challenging the judgment of conviction as to the c o n s p ira c y.2 For the reasons set forth below, we will affirm.

I.

O n October 18, 2001, during a narcotics investigation, several Allentown police o f f ic e rs knocked on the door of an apartment at 941 Hamilton Street in Allentown.

Murray's co-defendant, Franklin Butler, opened the door with a gun in his hand. Upon s e e in g the police, Butler attempted to close the door, but police forced it open and entered th e apartment. They pursued Butler into a small bedroom where they discovered Murray s ittin g at a small table, cutting a white rock substance, which appeared to be crack c o c ain e , with a razor. There were approximately five crack pipes on the table.

T h e officers secured both Butler and Murray. In conducting a search of Butler's p e rs o n , they discovered thirty-seven small Ziploc bags containing crack cocaine and $947 in cash. After receiving a Miranda warning, Butler admitted that the gun­which was f o u n d under a blanket nearby­belonged to him and that he used it to protect his drugs. He a ls o admitted that he earned approximately $5000 on drug sales during a "good week" at th e apartment. App. at 67.

A n officer also advised Murray of his Miranda rights. Waiving his right to remain s ile n t, Murray explained that he rented the apartment and that he was about to "do a line o f coke" before the police entered the room. App. at 68. He consented to a search of the p re m is e s. During the search, the police discovered a 16-ounce bottle of Inositol, an agent u s e d to cut cocaine, unused glassine baggies in the closet, two cellular phones, and an iden tifica tio n card belonging to Murray. The police did not find any drugs on Murray's p e rs o n ; he was carrying only $18.39. During a subsequent interview, Murray listed the a p a r tm e n t at 941 Hamilton as his address.

II.

T h e District Court exercised jurisdiction pursuant to 18U.S.C. § 3231. We have a p p e lla te jurisdiction pursuant to 28U.S.C. § 1291. When considering the sufficiency of th e evidence supporting a conviction, we determine if the evidence, viewed in the light m o s t favorable to the government, would allow a rational trier of fact to find that the g o v e rn m e n t had proved all the elements of the crime beyond a reasonable doubt. See U n ite d States v. Dent, 149 F.3d 180, 187 (3d Cir. 1998) (citations omitted).

III.

In order to establish a conspiracy, the Government must prove, among other th in g s , that "the alleged conspirators shared a `unity of purpose,' the intent to achieve a c o m m o n goal, and an agreement to work together toward the goal." United States v. W e x le r, 838 F.2d 88, 90-91(3d Cir. 1988) (citing United States v. Kates, 508 F.2d 308, 3 1 0 -1 1 (3d Cir. 1975)). All of the elements of a conspiracy, including the element of in te n t, may be proven by circumstantial evidence. See id. (citations omitted). Murray a p p e a ls his conviction, claiming that, although he may have been using drugs, there is in su f f icie n t evidence to establish that he and Butler shared a "unity of purpose" to d is trib u te the drugs. We disagree and, accordingly, will affirm the judgment of the D istric t Court.

In support of his argument, Murray relies on our decisions in Wexler, 838 F.2d 88, U n ite d States v. Cartwright, 359 F.3d 281 (3d Cir. 2004), United States v. Thomas, 114 F .3 d 403 (3d Cir. 1997), and United States v. Salmon, 944 F.2d 1106 (3d Cir. 1991). In e a ch of these cases, we reversed a conspiracy conviction where there was no evidence th a t the defendant had any contact with the drugs, concluding that the Government had f a iled to prove that the defendant was aware that a controlled substance­as opposed to so m e other contraband­was the object of the conspiracy.3 Unlike the defendants in W e x le r, Cartwright, Thomas, and Salmon, however, Murray cannot contend that he was u n aw are of the object of the conspiracy: he was caught red-handed (or perhaps more a c cu ra te ly, white-handed), physically touching the substance, which he acknowledged w a s cocaine.

In a second line of cases, we have overturned a defendant's conviction for p o s s e ss io n or conspiracy to possess drugs where there was no evidence that the defendant e x e rc is e d dominion or control over the drugs. See United States v. Brown, 3 F.3d 673 (3d C ir. 1993) (reversing conviction of Brown's alleged co-conspirator, Ana Baltimore, based o u r conclusion that "while the evidence may be sufficient to show that Baltimore was re sid in g at the Brown home and that she knew that drugs were in the house, the evidence is not sufficient to support a finding that she exercised dominion and control over the d ru g s" ); United States v. Jenkins, 90 F.3d 814 (3d Cir. 1996) (overturning conviction on su f f icie n c y grounds where the defendant was sitting in his underwear in close proximity to drugs and distribution materials, but where there was no evidence that he had physically handled the contraband). These cases are also inapposite. In Brown and J e n kin s , there was no evidence that the defendants had physically touched the drugs or th a t they owned or controlled the properties in which they were housed. Cf. Jackson v. B ir d , 105 F.3d 145 (3d Cir. 1997) (affirming denial of state habeas petition where drugs w ere discovered in room of another resident, but defendant was lessee of the apartment).

In this case, the Government presented evidence that Murray was not only actively en g ag ed in cutting the crack cocaine, but that he was the lessee of the apartment where B u tle r distributed drugs. His actual physical possession of the drugs and, as lessee of the a p a rtm e n t, his control over the premises are relevant facts from which the jury could have in f e rre d that Murray shared Butler's goal of distributing drugs. This evidence, c irc u m sta n tial though it may be, is sufficient, when viewed in the light most favorable to th e government, to allow a rational trier of fact to find that Murray was engaged in a c o n sp ira c y in violation 21U.S.C. § 846. Accordingly, we will affirm the judgment of the D istric t Court.

1 Murray was acquitted on a third count, namely, possession with intent to d is trib u te cocaine base, and aiding and abetting the same, in violation of 21U.S.C. §§

8 4 1 (a )( 1 ) and 841(b)(1)(C).

2 Murray does not appeal the District Court's ruling with respect to the conviction u n d er 21U.S.C. § 856(a)(2).

3 In Cartwright, the defendant acted as an armed lookout for a supplier carrying c o c ain e in a shopping bag, but we held that the evidence did not show that the defendant h a d ever been in possession of the cocaine or otherwise knew that cocaine was being e x c h an g e d . 359 F.3d at 288-91. In Thomas, customs officials seized drugs from a s u itc a se and then left it in a hotel room, and the defendant unlocked, entered, and then exited the hotel room without the suitcase, but the defendant testified that he had merely b e e n offered $500 to check on the suitcase, and we held that the evidence did not co n tro v ert his story or show that he knew drugs were involved. 114 F.3d at 404-06. In S a lm o n , the defendant rode in a car with the seller to a parking lot, opened the trunk of th e car, stood nearby while the seller interacted with the buyer, and then drove the car aw ay from the parking lot. A bag containing drugs was subsequently found on the buyer, b u t we held that the evidence did not show that the bag came from the car, nor did it show th a t the defendant would have known that the bag contained drugs even if it did come fro m the car. 944 F.2d at 1112-15. In Wexler, the defendant acted as a lookout during the m o v e m e n t of a truck hauling drugs, but we held that the evidence did not show that the d e f e n d a n t knew that the truck contained drugs. 838 F.2d at 91-92.