                                                                    NOT PRECEDENTIAL

                           UNITED STATES COURT OF APPEALS
                                FOR THE THIRD CIRCUIT
                                        ______

                                          No. 08-1320
                                            ______

                               UNITED STATES OF AMERICA


                                                 v.

                                        LARRY DAVIS,
                                              Appellant
                                           ______

                        On Appeal from the United States District Court
                           for the Eastern District of Pennsylvania
                                (D.C. Crim. No. 04-00680-09)
                           District Judge: Honorable Jan E. DuBois
                                            ______

                       Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                        June 24, 2011

             Before: BARRY, AMBRO, and VAN ANTWERPEN, Circuit Judges

                                      (Filed: July 13, 2011)
                                              ______

                                  OPINION OF THE COURT
                                          ______

VAN ANTWERPEN, Circuit Judge.

       A jury convicted Larry Davis guilty of conspiracy to distribute more than five kilograms

of cocaine and substantive cocaine distribution offenses. Davis argues that the evidence was

insufficient to prove the conspiracy charge and that the District Court improperly admitted

evidence at trial. For the reasons which follow, we will affirm.

                                                I.
       On April 13, 2005, a Grand Jury returned a Fifty-Three Count Superseding Indictment

against Davis and eight other co-defendants.1 Count One charged all defendants with conspiracy

to distribute more than five kilograms of cocaine in Philadelphia and Delaware Counties from

July 2003 through October 2004, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A).

Additionally, Davis was charged with distribution of cocaine in violation of 21 U.S.C. §§

841(a)(1) and (b)(1)(C) and distribution of cocaine within 1,000 of a school in violation of 21

U.S.C. §§ 841(b)(1)(C) and 860(a).

       The Superseding Indictment alleged a large-scale cocaine distribution conspiracy. At the

top of the conspiracy was defendant Tyrone Smith, who obtained large quantities of cocaine and

distributed it to defendant William Green, who in turn redistributed it to defendant Louis Stillis.

Stillis then distributed the cocaine to street-level cocaine sellers like Davis. Davis and his co-

conspirators then sold then cocaine to street-level buyers in the Toby Farms neighborhood of

Delaware County, Pennsylvania.

       Davis and three co-defendants went to trial on January 3, 2007. At the close of the

Government‟s case, Davis moved for judgment of acquittal, but the District Court denied the

motion. The jury convicted Davis on all counts. On January 23, 2008, the District Court

sentenced Davis to 120 months‟ imprisonment. Davis timely appealed.2

                                                 II.

       On appeal, Davis argues: (1) that the evidence was insufficient to prove his membership

in the conspiracy; (2) that the evidence was insufficient to prove he conspired to distribute five or


1
 Five co-defendants pled guilty. Davis and three co-defendants – Louis Stillis, Tyrone
Trader, and Jamal Rideout – were convicted at trial.
2
  The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have appellate
jurisdiction pursuant to 28 U.S.C. § 1291.
                                                  2
more kilograms of cocaine; and (3) that the District Court abused its discretion by admitting

certain evidence. We reject Davis‟ arguments.

                                                A.

       Davis first challenges his conspiracy conviction, arguing that the evidence was

insufficient to prove his membership in the conspiracy. When reviewing a challenge to the

sufficiency of the evidence, “[w]e must sustain the verdict if, viewing the evidence in the light

most favorable to the Government, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” United States v. Rawlins, 606 F.3d 73, 80 (3d

Cir. 2010) (quotations and citation omitted).

       “The elements of a charge of conspiracy are: (1) „a unity of purpose between the alleged

conspirators;‟ (2) „an intent to achieve a common goal;‟ and (3) „an agreement to work together

toward that goal.‟” United States v. Pressler, 256 F.3d 144, 149 (3d Cir. 2001) (quoting United

States v. Gibbs, 190 F.3d 188, 197 (3d Cir. 1999)). “A conspiratorial agreement can be proved

circumstantially based upon reasonable inferences drawn from actions and statements of the

conspirators . . . .” United States v. McKee, 506 F.3d 225, 238 (3d Cir. 2007).

       The evidence was sufficient to prove Davis participated in the conspiracy as a street-level

drug dealer. Kenneth Wilson, a co-defendant who pled guilty, testified at trial that he delivered

cocaine from Stillis to Davis. Supp. App. 307. Davis then repeatedly sold cocaine to street-level

customers who also purchased cocaine from other members of the conspiracy. Additionally, the

conspirators worked together to evade detection. On one occasion, Stillis called Davis and told

Davis to “shut it down” because police had arrested some other individuals. Id. at 1157. When

Davis asked who had been arrested, Stillis replied, “They didn‟t get nobody on our squad[,]

man.” Id. The jury could have inferred a conspiratorial agreement between Stillis and Davis


                                                 3
from Stillis‟ reference to “our squad.” This conversation demonstrates “mutual trust,” a factor

indicative of a conspiracy. Gibbs, 190 F.3d at 199. Finally, wiretapped phone conversations

showed an “established method of payment.” Id. Davis gave proceeds of his drug sales to

Stillis, Supp. App. 1138, Stillis imposed a sales quota on Davis, id. at 1152, and Stillis collected

money from Davis, id. at 1156. The jury could reasonably infer a buyer-seller relationship from

these conversations, and we have found the existence of a conspiracy in less obvious

circumstances. See United States v. Iglesias, 535 F.3d 150, 156 (3d Cir. 2008) (buyer-seller

conspiracy existed where buyer only bought drugs from a seller “once or twice” and where the

seller fronted drugs to the buyer and awaited payment until after sales). Accordingly, the

evidence was sufficient for a reasonable juror to infer Davis‟ membership in the conspiracy.

                                                 B.

       Davis next argues that the evidence was insufficient to prove he conspired to distribute

five or more kilograms of cocaine. The jury found as much in response to the District Court‟s

interrogatory. Viewing the evidence in the light most favorable to the Government, we think a

rational juror could have found Davis guilty. Multiple street-level buyers testified they bought

cocaine from Davis, and William Green, a co-defendant, supplied both Stillis and Davis with

cocaine.

       Moreover, Davis was liable for all reasonably foreseeable criminal offenses committed

by his co-conspirators during the course of, and in furtherance of, the drug conspiracy. See

Pinkerton v. United States, 328 U.S. 640, 646-48 (1946). Considering Davis‟ conspiratorial

relationship with Stillis, it was reasonably foreseeable to Davis that the conspiracy involved

more than five kilograms of cocaine. Accordingly, the evidence was sufficient to prove Davis

conspired to distribute more than five kilograms of cocaine.


                                                  4
                                                 C.

       Last, Davis argues that the District Court abused its discretion by admitting evidence

seized from Tyrone Smith‟s residence, including kilogram wrappers, a money counter, drug

scales, and other paraphernalia. During opening arguments, the Government stated that Smith

was the conspiracy‟s supplier. Over Davis‟ objection, the District Court permitted Pennsylvania

State Trooper Michael Skahill to testify about the evidence from Smith‟s residence. Davis

contends the evidence was irrelevant and unfairly prejudicial. The Government responds that the

District Court properly admitted the evidence to corroborate Green‟s testimony that Smith

supplied him with large quantities of cocaine. We agree with the Government.

       We review the District Court‟s admission of evidence for abuse of discretion. United

States v. Bobb, 471 F.3d 491, 497 (3d Cir. 2006). First, the evidence obtained from Smith‟s

residence was relevant. “„Relevant evidence‟ means evidence having any tendency to make the

existence of any fact that is of consequence to the determination of the action more probable or

less probable . . . .” Federal Rule of Evidence 401. This threshold is “not high.” United States

v. Kemp, 500 F.3d 257, 295 (3d Cir. 2007) (quotations and citation omitted). Here, the evidence

from Smith‟s residence was relevant to the Government‟s alleged chain of distribution and

tended to make the existence of the conspiracy more probable.

       Nor did the evidence unfairly prejudice Davis. “Although relevant, evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . .

.” Federal Rule of Evidence 403. As we stated in United States v. Starnes, “[T]he prejudice

against which [Rule 403] guards is unfair prejudice – prejudice of the sort which clouds

impartial scrutiny and reasoned evaluation of the facts, which inhibits neutral application of

principles of law to the facts as found.” 583 F.3d 196, 215 (3d Cir. 2009) (quotations and


                                                 5
citations omitted). The evidence seized from Smith‟s residence was admitted for the limited

purpose of proving the conspiracy‟s chain of distribution. The Government then presented

extensive direct evidence of Davis‟ culpability, including testimony from a co-conspirator who

delivered cocaine to Davis, testimony from street-level buyers who purchased cocaine from

Davis, and wiretap conversations showing Davis‟ conspiratorial relationship with Stillis.

Considering this direct evidence of Davis‟ role in the conspiracy, the limited evidence seized

from Smith‟s residence did not unfairly prejudice Davis. The District Court did not abuse its

discretion.

                                               III.

       For the foregoing reasons, the District Court properly denied Davis‟ motion for judgment

of acquittal on Count One and for a new trial on all counts. Accordingly, we will affirm Davis‟

conviction and sentence.




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