NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________________

No. 21-3086 ________________

UNITED STATES OF AMERICA

v.

KESHI IVES,

Appellant ________________

Appeal from the United States District Court for the Middle District of Pennsylvania (D. C. No. 1-20-cr-00285-001) District Judge: Honorable Christopher C. Conner ________________

Submitted under Third Circuit LAR 34.1(a) on January 12, 2023

Before: JORDAN, PHIPPS and ROTH, Circuit Judges

(Opinion filed: July 14, 2023) ________________

OPINION * ________________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. ROTH, Circuit Judge

A jury found Keshi Ives guilty of attempted possession with the intent to distribute

a controlled substance containing cocaine. Ives appeals the District Court’s denial of his

motion for judgment of acquittal. We will affirm.

I.

Ives was charged with attempting to possess with intent to distribute five hundred

grams or more of cocaine hydrochloride under

, 846. At trial, the

government presented the following evidence: A package addressed to Melrose Paul was

delivered to the residence of Ives’s girlfriend. No one by this name lived at her residence

and the return address was fake. Using a fake recipient name and return address are typical

methods for transmitting controlled substances through the mail.

When Ives’s girlfriend did not recognize the addressee’s name, she had it returned

to sender. On return, the post office considered the package suspicious and alerted a postal

inspector. About a kilogram of cocaine was inside the package. Meanwhile, the post office

received two redelivery requests with Ives’s name and his girlfriend’s address entered as

the customer information. The first request was for customer pick-up. The second was for

delivery to the residence of Ives’s girlfriend. Both requests came from the phone number

of Ives’s cousin, Dwayne Carey, who was a known drug dealer.

After Carey learned that the package was returned to the post office, he cursed and

explained that they “got until the 29th.” 1 Using text messaging, Ives and Carey coordinated

1 Appx. 198. 2 a plan to retrieve the package. Phone records show that they made almost fifty phone calls

to each other in the week following the missed delivery, significantly more than the month

before.

Ives later texted his girlfriend, explaining that the package was being redelivered

and that she should not refuse it. His girlfriend responded that this “seemed shady” and

told him to send the package to his mother’s house. 2 Instead, Ives decided to retrieve it

from the post office himself.

Ives went to the post office, seeking to retrieve the package. The post office alerted

a postal inspector, who then coordinated with state police to set up a controlled buy

operation. As part of this operation, the postal inspector called Ives to coordinate the

package’s retrieval. During this call, Ives stated that the package was something he had

bought from Arizona. When Ives arrived at the post office, undercover officers observed

him engaging in several counter-surveillance techniques before retrieving the package.

After he had possession of the package, he realized that law enforcement officers were

moving in. He tried to flee. Ives was then arrested.

Upon a search of Ives’s house, agents found a note in a crockpot about receiving a

package under the name Melrose Paul. Ives’s girlfriend said that she did not write that note

and that Ives kept his things inside that crockpot.

At trial, the government offered no direct evidence that Ives knew that the package

contained a controlled substance, but the government’s expert on drug trafficking testified

2 Appx. 50–51. 3 that drug couriers “typically know the contents [of the packages] . . . . [b]ecause they’re

responsible for it.” 3

After both parties had rested their cases, Ives moved for a judgment of acquittal.

This motion was denied. He was found guilty and sentenced to sixty months’ incarceration.

He appeals.

II. 4

We give plenary review to the denial of a motion for judgment of acquittal. 5 We

apply the same sufficiency of the evidence standard as the District Court, independently

“review[ing] the record in the light most favorable to the prosecution to determine whether

any rational trier of fact could have found proof of guilt[] beyond a reasonable doubt” based

on the available evidence. 6 We must take care “not to usurp the role of the jury by weighing

credibility and assigning weight to the evidence, or by substituting [our] judgment for that

of the jury.” 7 In doing so, “we review the evidence as a whole, not in isolation, and ask

whether it is strong enough for a rational trier of fact to find guilt beyond a reasonable

doubt.” 8 When viewed in a light most favorable to the government, we must affirm a

3 Appx. 236–37. 4 The District Court had subject matter jurisdiction under

. We have jurisdiction under

. 5 United States v. Caraballo-Rodriguez,

(3d Cir. 2013) (en banc). 6

at 430 (quoting United States v. Brodie,

(3d Cir. 2005)) (second alteration in original). 7

(quoting Brodie,

) (alteration in original). 8

(quoting United States v. Boria,

(3d Cir. 2010)). 4 district court’s denial of a motion for acquittal if there is substantial evidence to uphold the

jury’s verdict. 9

Under

(a), 846, the government must prove that the defendant

attempted to possess a controlled substance and did so knowingly or intentionally. 10 Ives

argues that there is insufficient evidence to support a finding that he knew the package

contained a controlled substance. We disagree.

Despite no direct evidence, there is ample circumstantial evidence that Ives knew

the package contained a controlled substance. Viewing this circumstantial evidence as a

whole and drawing all reasonable inferences in favor of the government, we conclude there

is substantial evidence to uphold the jury’s finding that Ives knew the package contained a

controlled substance and, specifically, that he knew which controlled substance it was.

There was enough evidence for the jury to conclude that Ives was not being left in the dark

about the details.

As the government put it, the evidence painted a “vivid picture” of Ives helping his

cousin by knowingly receiving a package containing a controlled substance. Given their

familial relationship and how often they spoke, it is reasonable to infer that Ives knew

Carey dealt controlled substances. Ives and Carey called each other about six times more

in the week after the failed delivery than in the entire previous month. This, coupled with

the text messages coordinating retrieval of the package by “the 29th,” suggests both men

9

10

(a), 846; Third Circuit Model Jury Instructions § 6.21.841A. 5 were quite concerned about retrieving the package. 11 The extent to which they

communicated about their plan to retrieve the package creates a reasonable inference that

they knew the stakes for this were high. Thus, it is reasonable to infer that Ives knew the

package contained drugs.

In addition, the use of a fake name and fake return address, which are typical

methods when mailing controlled substances, further suggests that Ives was aware the

package contained a controlled substance. This conclusion is supported by the note about

receipt of a package under the name Melrose Paul found among his personal belongings,

which suggests he knew to look out for this particular package, even though it was not

addressed to him.

Moreover, that Ives used countersurveillance upon arrival and then tried to flee

when he saw officers moving in also suggests he knew the package contained something

illegal. Given that Ives likely knew that Cary dealt drugs and the text messages make clear

that Carey had some connection to the package, it is reasonable to conclude that Ives knew

the package specifically contained a controlled substance. These inferences, along with

the government expert’s testimony that drug couriers typically know the contents of the

packages they deliver, further support this finding. We conclude that there is sufficient

evidence to uphold the jury’s verdict. We cannot usurp the role of the jury by weighing

the credibility of and assigning weight to the evidence. Ives’s motion for acquittal was

properly denied.

11 Appx. 198. 6 III.

Viewed in the light most favorable to the prosecution, there is sufficient evidence

to support the guilty verdict. We will therefore affirm the judgment of conviction of the

District Court.

7