                                                    NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                                   No. 13-2753
                                  _____________

                        UNITED STATES OF AMERICA

                                          v.

                                TODD SUMMERS,
                                           Appellant
                                 _____________

                 On Appeal from the United States District Court
                     for the Western District of Pennsylvania
                       District Court No. 2-10-cr-00103-001
                 District Judge: The Honorable David S. Cercone

                Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                              September 12, 2014

     Before: McKEE, Chief Judge, SMITH, and SHWARTZ, Circuit Judges

                            (Filed: December 10, 2014)
                              ____________________

                                    OPINION
                              ____________________


SMITH, Circuit Judge.




 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
      Todd Summers appeals from his conviction for conspiracy to distribute and

to possess with intent to distribute one kilogram or more of heroin in violation of

21 U.S.C. § 846 and from the sentence of 132 months of imprisonment. For the

reasons set forth below, we will affirm.1

      The trial testimony established that Vernon Williams was the leader of a

heroin conspiracy in the greater Pittsburgh metropolitan area, who worked closely

with Snowley Brooks and others to supply his dealers. From 2008 to February of

2010, Brooks supplied Summers’ increasing demand for bricks of heroin. After

agents from the Drug Enforcement Administration (DEA) contacted Williams in

February 2010, the scheme unraveled. Williams and Brooks both testified at

Summers’ trial, as did DEA Agent Scott M. Smith (Agent Smith).

      Summers contends that the District Court erred by allowing Agent Smith to

provide an overview of the prosecution’s case. In addition, Summers asserts that

Agent Smith testified as both an expert and a fact witness and that his expert

testimony should not have been admitted.          We review a District Court’s

evidentiary rulings for an abuse of discretion. United States v. Green, 617 F.3d

233, 239 (3d Cir. 2010). Because Summers did not object to these aspects of

Agent Smith’s testimony, we review for plain error. Fed. R. Crim. P. 52(b);


1
  The District Court exercised jurisdiction under 18 U.S.C. § 3231. Appellate
jurisdiction exists pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
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United States v. Olano, 507 U.S. 725, 733-35 (1993). As Agent Smith’s testimony

concerned facts about the investigation with which he was personally familiar or

which were corroborated by other witnesses, any error was not plain.

      According to Summers, the District Court also erred by allowing the

introduction of photographs of the heroin bricks and drug paraphernalia.         In

Summers’ view, this evidence should have been excluded under Federal Rule of

Evidence 403 because it was more prejudicial than probative. This alleged error is

also subject to review for an abuse of discretion. Green, 617 F.3d at 251. There

was no abuse of discretion. The evidence was relevant to the quantity of heroin at

issue and any prejudice attributable thereto was not unfair.

      Summers also challenges the sufficiency of the evidence with regard to the

one kilogram or more quantity of heroin. We review “the sufficiency of the

evidence in the light most favorable to the government and must credit all available

inferences in favor of the government.” United States v. Riddick, 156 F.3d 505,

509 (3d Cir. 1998). The evidence established that Summers regularly purchased

bricks of heroin several times a week and that he demanded more and more heroin

to distribute the longer he was a member of the conspiracy. Mindful that Summers

was convicted of a § 846 conspiracy, as opposed to a charge of possession with

intent to distribute or distribution under § 841(a)(1) and hence was responsible for


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not only what he personally obtained for distribution, we conclude that the

evidence was sufficient and the judgment need not be set aside.2

      Summers’ next contention is that the District Court erred in denying

Summers’ motion for a bill of particulars, which he filed 20 months after the return

of the indictment.    Summers alleges that, because he did not have a bill of

particulars, he was unprepared for the prosecution’s argument that his purchases

from Brooks alone exceeded one kilogram of heroin. We review for abuse of

discretion. United States v. Urban, 404 F.3d 754, 771 (3d Cir. 2005). The District

Court’s denial of this motion was not an abuse of discretion. The indictment

specifically apprised Summers of the quantity at issue.       Moreover, Summers’

access to discovery prior to filing the motion provided ample information to allow

Summers to prepare an effective trial strategy. Id. at 772.

      Summers complains about the lack of specificity in the indictment and

asserts that this allowed the government to prove its case with evidence that varied

from the indictment. Even if there was a variance (and Summers failed to provide

us with sufficient citations to the record to show there was), we are not persuaded

that it was prejudicial. Summers was cognizant of the charge against him and had

2
  As there was sufficient evidence that Summers knowingly joined the conspiracy
and hence was responsible for the drugs attributed to his co-conspirators and law
enforcement officers recovered more than one kilogram of heroin from Williams
alone, any error from the admission of Agent Smith’s testimony regarding the
quantity of drugs personally attributable to Summers was harmless.
                                          4
sufficient information to prepare his defense. See United States v. Vosburgh, 602

F.3d 512, 532 (3d Cir. 2010) (observing that a defendant cannot demonstrate

prejudice from a variance if he was informed of the charges against him and able to

prepare his defense without being misled or surprised at trial).

      Summers also cites as error the District Court’s decision not to allow DEA

reports which were admitted into evidence to go out with the jury during its

deliberations. We review this ruling for an abuse of discretion. United States v.

Schanerman, 150 F.2d 941, 945 (3d Cir. 1945) (observing that trial judge’s

decision allowing exhibits and indictment to go out with the jury during their

deliberations is a matter that “fell within his sound discretion”). We fail to see any

abuse of discretion. The Court explained that the jury had heard the testimony of

law enforcement agents and the Court did not want the jury to give “undue weight”

to any information contained in the reports.

      Because we consider only plain errors and errors that were preserved for

appellate review when reviewing for cumulative error, we need not address

Summers’ cumulative error claim. United States v. Christian, 673 F.3d 702, 708

(7th Cir. 2012).

      Finally, we consider Summers’ argument that the District Court erred in

calculating the applicable Sentencing Guideline range. He submits that the Court

erred by assigning him responsibility for at least one kilogram of heroin, resulting
                                          5
in an offense level of 32. Inasmuch as we have concluded there was sufficient

evidence to support Summers’ § 846 conspiracy involving one kilogram or more of

heroin, it follows that the District Court did not err by concluding that Summers’

base offense level was 32.




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