                                                                   NOT PRECEDENTIAL

                           UNITED STATES COURT OF APPEALS
                                FOR THE THIRD CIRCUIT
                               __________________________

                                         No. 13-3513
                                 __________________________

                               UNITED STATES OF AMERICA,

                                                 v.

                                  JEROME LAMONT KELLY,

                                                          Appellant
                                        ______________

                 APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                                   (2-08-cr-00374-012)
                         District Judge: Hon. Joy Flowers Conti
                                     _____________

                          Submitted Under Third Circuit L.A.R. 34.1(a)
                                      October 30, 2015
                                      ______________

              Before: GREENAWAY, JR., SCIRICA, and ROTH, Circuit Judges.

                               (Opinion Filed: December 4, 2015)
                                       ______________

                                           OPINION*
                                        ______________




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

       Jerome Lamont Kelly appeals from his conviction for conspiracy to distribute and

possess with intent to distribute five kilograms or more of a mixture and substance

containing a detectable amount of cocaine, and fifty grams or more of a mixture and

substance containing a detectable amount of cocaine base, contrary to 21 U.S.C. § 846.

Kelly asserts that: (1) the evidence presented at trial was sufficient to establish only a

buyer-seller relationship between him and members of the charged conspiracy, not that

Kelly was himself a member of the conspiracy; (2) the government’s drug-trafficking

expert impermissibly opined that Kelly was a conspirator; and (3) the prosecutor

committed misconduct in his closing argument. For the following reasons, we will

affirm.1

       Kelly argues first that the evidence was insufficient to support his conspiracy

conviction. As the government concedes, Kelly preserved this alleged error. We apply a

“particularly deferential standard” to challenges to the sufficiency of the evidence: “[w]e

‘review 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.’”

United States v. Caraballo-Rodriguez, 726 F.3d 418, 430 (3d Cir. 2013) (en banc)

(second alteration in original) (quoting United States v. Brodie, 403 F.3d 123, 133 (3d

Cir. 2005)). “To establish a conspiracy, the government must prove beyond a reasonable

       1
             The District Court had jurisdiction over this case pursuant to 18 U.S.C.
§ 3231; we have jurisdiction under 28 U.S.C. § 1291.

                                                  2
doubt: (1) a shared unity of purpose; (2) an intent to achieve a common illegal goal; and

(3) an agreement to work toward that goal.” United States v. John-Baptiste, 747 F.3d

186, 204–05 (3d Cir.) (citations omitted), cert. denied sub nom. Brooks v. United States,

134 S. Ct. 2324 (2014), and cert. denied sub nom. Edwards v. United States, 134 S. Ct.

2889 (2014). The government may prove its case by either “direct or circumstantial

evidence.” Id. (citation omitted).

       Kelly is correct that “a simple buyer-seller relationship, without any prior or

contemporaneous understanding beyond the sales agreement itself, is insufficient to

establish that the buyer was a member of the seller’s conspiracy.” United States v. Perez,

280 F.3d 318, 343 (3d Cir. 2002) (quoting United States v. Gibbs, 190 F.3d 188, 198 (3d

Cir. 1999)). Nevertheless, “even an occasional supplier . . . can be shown to be a member

of the conspiracy by evidence, direct or inferential, of knowledge that she or he was part

of a larger operation.” United States v. Price, 13 F.3d 711, 728 (3d Cir. 1994) (citation

omitted).2




       2
               Kelly invites us to reconsider four factors that this Circuit applies to
determine whether a defendant possessed the requisite knowledge of the conspiracy in
light of the Seventh Circuit’s determination that “most of [those] factors did not actually
distinguish conspiracies from buyer-seller relationships.” United States v. Brown, 726
F.3d 993, 999 (7th Cir. 2013), cert. denied, 134 S. Ct. 1876 (2014). As discussed below,
we find sufficient evidence to support the jury’s conclusion that Kelly knew he was part
of a larger operation. We therefore do not reach the four-factor test upon which the
District Court relied.


                                                 3
       Although Kelly was heard on only seven of the more than 60,000 calls that the

government intercepted while investigating this conspiracy, those seven calls, together

with the explanatory testimony by government witnesses, suffice to enable a rational jury

to find beyond a reasonable doubt that Kelly was a member of the conspiracy rather than

a mere customer. Phone records indicate that Kelly and Alford, the head of the charged

conspiracy, discussed third parties in a way that would enable a rational jury to conclude

that Kelly was aware of Alford’s transactions with drug suppliers and, by extension, of

Alford’s role within a larger operation. See J.A. at 1228–29, 1236. The phone

transcripts, as interpreted by the drug-trafficking expert who testified for the government,

also reveal that Kelly consulted Alford when Kelly encountered difficulty “cooking” the

cocaine that he had purchased to form crack, which a rational trier of fact could interpret

to demonstrate Kelly’s role as a processor and distributor of crack and as a co-conspirator

of Alford. See J.A. at 585–89, 1249–51. We therefore conclude that there is sufficient

evidence to support the jury’s conclusion that Kelly was a member of the conspiracy.

       Kelly did not preserve either of his other arguments below; accordingly, we

review these claims for plain error. “For reversible plain error to exist, there must be (1)

an error; (2) that is plain; (3) that affects substantial rights; and (4) which seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” United States

v. Paladino, 769 F.3d 197, 201 (3d Cir. 2014) (quoting United States v. Tai, 750 F.3d

309, 313–14 (3d Cir. 2014)). An error that “affec[ts] substantial rights . . . in most cases .


                                                   4
. . means that the error must have been prejudicial: It must have affected the outcome of

the district court proceedings.” United States v. Olano, 507 U.S. 725, 734 (1993).

       Kelly argues that the government’s drug-trafficking expert violated Rule 704’s

prohibition against testimony by an expert witness “about whether the defendant did or

did not have a mental state or condition that constitutes an element of the crime charged

or of a defense.” Fed. R. Evid. 704 (b). Defense counsel asked whether the expert would

agree that “two people [who] are on the phone and talking about cooking up crack,”

without any reference to the fact that “one purchased it from [the other],” were not

necessarily “conspiring to sell those drugs together.” J.A. at 960. The witness ultimately

responded: “That’s a possibility, but not the calls that we listened to. But in your

hypothetical, it’s a possibility, yes.” J.A. at 961. Kelly asserts that this response

transgressed Rule 704 through its implication that Kelly and Alford were co-conspirators

and that Kelly therefore had the mens rea necessary to support a conspiracy conviction.

We find it impossible to determine conclusively that this laconic response constitutes

anything more than an attempt to distinguish the subject call from the hypothetical posed

by defense counsel. In light of the evidence that supports Kelly’s membership in the

conspiracy, moreover, this answer does not create the prejudice necessary to demonstrate

plain error.

        Kelly’s contention that the prosecutor’s closing remarks require reversal is

equally unavailing. Kelly argues that the prosecutor: (1) misstated the law by suggesting

that anyone who purchases cocaine can be convicted of conspiracy because cocaine
                                                  5
necessarily comes from another country; (2) denigrated Kelly, his co-defendant Alonzo

Lamar Johnson, and defense counsel by calling their arguments “offens[ive]”; and (3)

accused the defendants of calling the government witnesses “liars.” According to Kelly,

the district court’s failure to spontaneously cure these remarks rises to the level of

reversible error.

       We disagree. “When analyzing a claim of prosecutorial misconduct, the key

question is whether a state prosecutor’s comments to the jury ‘so infec[ted] the trial with

unfairness as to make the resulting conviction a denial of due process.’” Rolan v.

Coleman, 680 F.3d 311, 321 (3d Cir. 2012) (alteration in original) (quoting Greer v.

Miller, 483 U.S. 756, 765 (1987)). To answer this question, “a ‘reviewing court must

examine the prosecutor’s offensive actions in context and in light of the entire trial,

assessing the severity of the conduct, the effect of the curative instructions, and the

quantum of evidence against the defendant.’” Id. (quoting Moore v. Morton, 255 F.3d

95, 107 (3d Cir. 2001)). Here, we find that none of the complained-of comments call

Kelly’s conviction into question.

       First, although the prosecutor did juxtapose cocaine production and distribution—

which involves many steps and therefore offers many levels of potential conspiracy—

with the growth and sale of marijuana—which could be a one-person job, J.A. at 1111–

13—he spoke much more concretely about Kelly’s co-conspirators, or those who spoke

to and about Kelly in the phone recordings, J.A. at 1118–20. Second, the prosecutor’s

statement that defense counsel made certain suggestions “unbelievably” and rhetorical
                                                  6
question as to whether those suggestions “offend [the jurors’] sensibility” are permissible

attacks on Kelly’s credibility. Rolan, 680 F.3d at 324. Finally, the prosecutor’s

statements that defense counsel had labelled certain government witnesses “liar[s],” J.A.

at 1165, are not misconduct; rather, they tend to counter such remarks by the defense as

“the Government has presented to you chapter after chapter of the book of fiction that we

call this trial,” J.A. at 1124. In short, we perceive no “denial of due process” in these

alleged instances of prosecutorial misconduct to which defense counsel made no

contemporaneous objection. United States v. Lee, 612 F.3d 170, 194 (3d Cir. 2010).

       For the foregoing reasons, we will affirm.




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