NOT RECOMMENDED FOR PUBLICATION File Name: 20a0218n.06
No. 19-5371
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED UNITED STATES OF AMERICA, ) Apr 16, 2020 ) DEBORAH S. HUNT, Clerk Plaintiff-Appellee, ) ) v. ) ON APPEAL FROM THE ) UNITED STATES DISTRICT JIMMY MCLAIN MOORE, ) COURT FOR THE EASTERN ) DISTRICT OF TENNESSEE Defendant-Appellant. ) )
Before: MOORE, KETHLEDGE, and BUSH, Circuit Judges.
KETHLEDGE, Circuit Judge. A jury found Jimmy McLain Moore guilty of conspiracy to
distribute methamphetamine, for which the court imposed a within-Guidelines sentence. Moore
says that his trial was unfair, that the evidence against him was insufficient to support the jury’s
verdict, and that the court incorrectly calculated his sentencing range. We reject his arguments
and affirm.
I.
In January 2017, a sheriff’s deputy in Monroe County, Tennessee, pulled over a suspected
methamphetamine dealer, Jamie Cook, for a traffic violation. With Cook’s consent, the deputy
searched Cook’s pockets and found a postal receipt showing that Cook had mailed a package to
Jimmy Moore in California. Cook said the package contained $2,400, which he had sent to Moore
in exchange for a package of methamphetamine that would be arriving soon. With Cook’s
cooperation, investigators then listened in on several calls in which Cook and Moore discussed No. 19-5371, United States v. Moore
(albeit cryptically) plans to ship methamphetamine. Those plans included a package of
methamphetamine that Moore had recently mailed to Gary Holder, who would pass its contents
on to Cook.
The package arrived a few days later. Postal Inspector Wendy Boles gave the package to
Holder after checking his identification. A sheriff’s deputy promptly pulled Holder over as he
drove away. A drug-detection dog alerted to the presence of drugs inside the car. Holder
consented to a search of the car and the package. Inside the package, the deputy found, wrapped
in bags of grease, 442 grams of methamphetamine.
Holder then consented to a search of his home, where the police found more bags of grease
along with labels from earlier packages. Holder also showed the police text messages from Moore,
which contained tracking numbers for packages sent previously and instructions as to how Holder
should send cash back to Moore. Boles determined from postal records that, over the previous
year, Moore or someone with his address or phone number had sent at least 17 packages to Holder
or Cook.
The government thereafter charged Moore with conspiring to distribute at least 50 grams
of methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and (b)(1)(A). Before trial,
Moore moved to suppress the meth from the intercepted package and his recorded conversations
with Cook. The court denied those motions. A jury convicted Moore on all charges.
At sentencing, the court found that Moore was responsible for more than 1.5 kilograms of
methamphetamine, which, together with his criminal history, yielded a Guidelines range of 292 to
365 months in prison. The court sentenced Moore to 292 months. This appeal followed.
-2- No. 19-5371, United States v. Moore
II.
A.
Moore argues that the district court should have granted his motion to suppress the
methamphetamine found in Holder’s car. With respect to that denial, we review the district court’s
findings of fact for clear error and its conclusions of law de novo, while viewing the record in the
light most favorable to the district court’s decision. See United States v. Marrero, 651 F.3d 453,
468 (6th Cir. 2011). Moore contends specifically (if implausibly) that he retained a privacy interest
in the contents of the package he mailed to Holder even after Holder picked it up, and that the
deputy’s warrantless search of the package violated the Fourth Amendment. We dispose of that
argument simply by observing that the search of Holder’s car and its contents was lawful if the
officer had probable cause to conduct the search, which he did once the dog alerted. See United
States v. Winters, 782 F.3d 289, 304 (6th Cir. 2015). Hence the court properly denied Moore’s
motion to suppress.
Moore next challenges the admission of recordings of his calls with Cook as evidence at
trial. First, Moore argues, the recordings were unintelligible and thus unreliable. But a recording
is admissible if it is trustworthy “as a whole.” United States v. Adams, 722 F.3d 788, 823 (6th Cir.
2013). Here, the government conceded that parts of the calls were unintelligible, which the
government labeled as “UI” in transcripts of the calls. Moore stipulated to the accuracy of those
transcripts in their entirety—intelligible and “unintelligible” portions alike—which shows that he
thought the recordings “as a whole” were trustworthy. See id. The court therefore did not abuse
its discretion by reaching the same conclusion.
Second, Moore argues that the admission of the phone recordings violated the Sixth
Amendment’s Confrontation Clause because Cook’s statements on the calls were hearsay. To
-3- No. 19-5371, United States v. Moore
answer that argument on its terms: as the district court correctly found, most of Cook’s statements
on the call took the form of questions, which are not hearsay, see United States v. Rodriguez-Lopez,
565 F.3d 312, 314-15 (6th Cir. 2009); and otherwise the recordings were admitted not “to show
the truth of the matters asserted, but to provide context for” Moore’s admissions during the calls,
see United States v. Henderson, 626 F.3d 326, 337 (6th Cir. 2010). Moore’s argument is meritless.
B.
Moore argues that the government lacked sufficient evidence to prove that he conspired to
distribute methamphetamine. That presents the question “whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).
To prove a conspiracy under 21 U.S.C. § 846, the government must show beyond a
reasonable doubt the existence of “an agreement to violate the drug laws, the defendant’s
knowledge of the agreement, and the defendant’s decision to voluntarily join (or ‘participate in’)
it.” United States v. Potter, 927 F.3d 446, 453 (6th Cir. 2019). “The existence of a conspiracy
may be inferred from circumstantial evidence that can reasonably be interpreted as participation
in the common plan.” United States v. Deitz, 577 F.3d 672, 677 (6th Cir. 2009).
At trial, Holder testified that he regularly sent money to Moore, that Moore sent packages
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NOT RECOMMENDED FOR PUBLICATION File Name: 20a0218n.06
No. 19-5371
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED UNITED STATES OF AMERICA, ) Apr 16, 2020 ) DEBORAH S. HUNT, Clerk Plaintiff-Appellee, ) ) v. ) ON APPEAL FROM THE ) UNITED STATES DISTRICT JIMMY MCLAIN MOORE, ) COURT FOR THE EASTERN ) DISTRICT OF TENNESSEE Defendant-Appellant. ) )
Before: MOORE, KETHLEDGE, and BUSH, Circuit Judges.
KETHLEDGE, Circuit Judge. A jury found Jimmy McLain Moore guilty of conspiracy to
distribute methamphetamine, for which the court imposed a within-Guidelines sentence. Moore
says that his trial was unfair, that the evidence against him was insufficient to support the jury’s
verdict, and that the court incorrectly calculated his sentencing range. We reject his arguments
and affirm.
I.
In January 2017, a sheriff’s deputy in Monroe County, Tennessee, pulled over a suspected
methamphetamine dealer, Jamie Cook, for a traffic violation. With Cook’s consent, the deputy
searched Cook’s pockets and found a postal receipt showing that Cook had mailed a package to
Jimmy Moore in California. Cook said the package contained $2,400, which he had sent to Moore
in exchange for a package of methamphetamine that would be arriving soon. With Cook’s
cooperation, investigators then listened in on several calls in which Cook and Moore discussed No. 19-5371, United States v. Moore
(albeit cryptically) plans to ship methamphetamine. Those plans included a package of
methamphetamine that Moore had recently mailed to Gary Holder, who would pass its contents
on to Cook.
The package arrived a few days later. Postal Inspector Wendy Boles gave the package to
Holder after checking his identification. A sheriff’s deputy promptly pulled Holder over as he
drove away. A drug-detection dog alerted to the presence of drugs inside the car. Holder
consented to a search of the car and the package. Inside the package, the deputy found, wrapped
in bags of grease, 442 grams of methamphetamine.
Holder then consented to a search of his home, where the police found more bags of grease
along with labels from earlier packages. Holder also showed the police text messages from Moore,
which contained tracking numbers for packages sent previously and instructions as to how Holder
should send cash back to Moore. Boles determined from postal records that, over the previous
year, Moore or someone with his address or phone number had sent at least 17 packages to Holder
or Cook.
The government thereafter charged Moore with conspiring to distribute at least 50 grams
of methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and (b)(1)(A). Before trial,
Moore moved to suppress the meth from the intercepted package and his recorded conversations
with Cook. The court denied those motions. A jury convicted Moore on all charges.
At sentencing, the court found that Moore was responsible for more than 1.5 kilograms of
methamphetamine, which, together with his criminal history, yielded a Guidelines range of 292 to
365 months in prison. The court sentenced Moore to 292 months. This appeal followed.
-2- No. 19-5371, United States v. Moore
II.
A.
Moore argues that the district court should have granted his motion to suppress the
methamphetamine found in Holder’s car. With respect to that denial, we review the district court’s
findings of fact for clear error and its conclusions of law de novo, while viewing the record in the
light most favorable to the district court’s decision. See United States v. Marrero, 651 F.3d 453,
468 (6th Cir. 2011). Moore contends specifically (if implausibly) that he retained a privacy interest
in the contents of the package he mailed to Holder even after Holder picked it up, and that the
deputy’s warrantless search of the package violated the Fourth Amendment. We dispose of that
argument simply by observing that the search of Holder’s car and its contents was lawful if the
officer had probable cause to conduct the search, which he did once the dog alerted. See United
States v. Winters, 782 F.3d 289, 304 (6th Cir. 2015). Hence the court properly denied Moore’s
motion to suppress.
Moore next challenges the admission of recordings of his calls with Cook as evidence at
trial. First, Moore argues, the recordings were unintelligible and thus unreliable. But a recording
is admissible if it is trustworthy “as a whole.” United States v. Adams, 722 F.3d 788, 823 (6th Cir.
2013). Here, the government conceded that parts of the calls were unintelligible, which the
government labeled as “UI” in transcripts of the calls. Moore stipulated to the accuracy of those
transcripts in their entirety—intelligible and “unintelligible” portions alike—which shows that he
thought the recordings “as a whole” were trustworthy. See id. The court therefore did not abuse
its discretion by reaching the same conclusion.
Second, Moore argues that the admission of the phone recordings violated the Sixth
Amendment’s Confrontation Clause because Cook’s statements on the calls were hearsay. To
-3- No. 19-5371, United States v. Moore
answer that argument on its terms: as the district court correctly found, most of Cook’s statements
on the call took the form of questions, which are not hearsay, see United States v. Rodriguez-Lopez,
565 F.3d 312, 314-15 (6th Cir. 2009); and otherwise the recordings were admitted not “to show
the truth of the matters asserted, but to provide context for” Moore’s admissions during the calls,
see United States v. Henderson, 626 F.3d 326, 337 (6th Cir. 2010). Moore’s argument is meritless.
B.
Moore argues that the government lacked sufficient evidence to prove that he conspired to
distribute methamphetamine. That presents the question “whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).
To prove a conspiracy under 21 U.S.C. § 846, the government must show beyond a
reasonable doubt the existence of “an agreement to violate the drug laws, the defendant’s
knowledge of the agreement, and the defendant’s decision to voluntarily join (or ‘participate in’)
it.” United States v. Potter, 927 F.3d 446, 453 (6th Cir. 2019). “The existence of a conspiracy
may be inferred from circumstantial evidence that can reasonably be interpreted as participation
in the common plan.” United States v. Deitz, 577 F.3d 672, 677 (6th Cir. 2009).
At trial, Holder testified that he regularly sent money to Moore, that Moore sent packages
of methamphetamine in return, and that Cook and others would pick up the drug and resell it. The
jury also heard recordings of calls in which Cook and Moore discussed methamphetamine
shipments and the drug’s price. And the jury saw postal records, text messages, and mailing labels
that showed Moore’s participation in a common plan to distribute methamphetamine. Suffice it to
say that the jury had sufficient evidence to find that Moore conspired to do precisely that.
-4- No. 19-5371, United States v. Moore
Yet Moore says that he had a “buyer-seller” relationship with Cook and Holder rather than
a conspiratorial one. See United States v. Brown, 332 F.3d 363, 373 (6th Cir. 2003). But here the
evidence showed an “enduring” arrangement in which Moore and others distributed large
quantities of methamphetamine. See Dietz, 577 F.3d at 680. The jury could find from that
evidence that Moore’s involvement went “beyond a mere buyer-seller relationship.” Brown,
332 F.3d at 373.
C.
Finally, Moore challenges the quantity of drugs that the district court attributed to him at
sentencing. We review the district court’s finding for clear error. See United States v. Woodside,
895 F.3d 894, 902 (6th Cir. 2018). The court heard testimony that Moore sent 17 packages to
Holder and Cook; that all those packages contained methamphetamine; that the postal records
showed the total weight of the packages Moore had mailed; and that, after accounting for the
weight of packing materials, those packages had contained more than 1.5 kilograms of
methamphetamine. That testimony provided an ample basis for the district court’s determination
of the quantity of drugs for which Moore was responsible. See United States v. Jeross, 521 F.3d
562, 570 (6th Cir. 2008).
* * *
The district court’s judgment is affirmed.
-5-