     Case: 13-30837      Document: 00512764181         Page: 1    Date Filed: 09/10/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit

                                    No. 13-30837                             FILED
                                  Summary Calendar                   September 10, 2014
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ISIAH KEITH,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:10-CR-332-1


Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Isiah Keith appeals his jury conviction for
conspiracy to possess with intent to distribute 280 grams or more of cocaine
base and possession with intent to distribute 28 grams or more of cocaine base.
He claims that the evidence was insufficient to support his conviction on either
count. With respect to the conspiracy charge, Keith also contends that, even if
the evidence was sufficient to prove a conspiracy, there was a material variance


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 13-30837

between the allegation of a single conspiracy in the superseding indictment
and the trial evidence which allegedly proved multiple conspiracies.
      Keith timely moved for a judgment of acquittal, so we review his
sufficiency claim de novo; we review the evidence in the light most favorable to
the verdict. United States v. Frye, 489 F.3d 201, 207 (5th Cir. 2007). In
determining if there was sufficient evidence to support a conviction, the
relevant question is whether “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’" United States v.
Vargas-Ocampo, 747 F.3d 299, 301 (5th Cir. 2014) (en banc) (quoting Jackson
v. Virginia, 443 U.S. 307, 319 (1979)), petition for cert. filed (June 24, 2014)
(No. 13-10737). The “only question” before us is whether the jury’s “finding
was so insupportable as to fall below the threshold of bare rationality.”
Coleman v. Johnson, 132 S. Ct. 2060, 2065 (2012). “Direct and circumstantial
evidence are given equal weight, and the evidence need not exclude every
reasonable hypothesis of innocence.” United States v. Gonzales, 79 F.3d 413,
423 (5th Cir. 1996).
      A review of the evidence in the light most favorable to the verdict
confirms that a rational trier of fact could have found beyond a reasonable
doubt that Keith was guilty of conspiracy with intent to distribute. Keith
contends that the evidence establishes only that he was in a buyer-seller
relationship. The testimony of Kenyetta Bailey, however, indicates that Keith
would often “front” him crack, to be repaid at a later date. This fact justifies
the inference that Keith conspired with others to distribute crack cocaine; his
relationship with Bailey went well beyond that of a “single buy-sell
agreement.” United States v. Delgado, 672 F.3d 320, 333 (5th Cir. 2012) (en
banc).   Additionally, the quantity of drugs involved, while not by itself
sufficient to support a conspiracy conviction, does support the inference that a



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                                 No. 13-30837

conspiracy to distribute crack cocaine existed. Id. at 344. Finally, evidence
that others were sometimes required to pick up drugs for Bailey further
supports the inference of a jointly undertaken enterprise to distribute crack
cocaine. Id. at 333-34.
      Keith maintains that, even if the evidence adduced at trial was sufficient
to prove a conspiracy, there was a material variance between the evidence and
the facts charged in the superseding indictment. As Keith failed to raise this
claim in the district court, we review it for plain error. See United States v.
McCullough, 631 F.3d 783, 793 (5th Cir. 2011). Keith has not shown that there
was a material variance between the indictment and the evidence presented at
trial. At the very least, there was sufficient evidence to establish that Keith
conspired with Bailey to violate federal drug laws. Even if the conspiracy
proved at trial differed from the conspiracy alleged, Keith cannot establish that
the variance affected his substantial rights. We have “long held that when the
indictment alleges the conspiracy count as a single conspiracy, but the
government proves multiple conspiracies and a defendant’s involvement in at
least one of them, then clearly there is no variance affecting that defendant’s
substantial rights.” United States v. Faulkner, 17 F.3d 745, 762 (5th Cir. 1994)
(internal quotation and citation omitted). As Keith has not demonstrated a
clear or obvious material variance, he cannot demonstrate that his substantial
rights were affected. See id.
      Keith finally contends, in an unorthodox point of error, that the
admission of testimony linking him to approximately 80 grams of crack cocaine
was evidentiary error and, without that improperly admitted evidence, the
remaining evidence was insufficient to support his conviction for possession
with intent to distribute. Keith conflates a claim of improperly admitted
evidence with a claim of insufficiency of the evidence by contending that the



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                                  No. 13-30837

challenged testimony was inadmissible hearsay and that the government was
improperly permitted to elicit the testimony on redirect examination. Keith
finally claims that it was error not to allow him to conduct re-cross examination
of the relevant witness.
      As an initial matter, Keith’s passing reference to inadmissible hearsay
is insufficient to raise the issue on appeal, and, by failing to brief the argument,
he has abandoned it. See United States v. Scroggins, 599 F.3d 433, 446 (5th
Cir. 2010).     Keith’s central assertion regarding the scope of redirect
examination is also unavailing. We review the district court’s evidentiary
ruling for abuse of discretion. United States v. Franklin, 561 F.3d 398, 404
(5th Cir. 2009). Here, the district court did not abuse its discretion. At trial,
Keith’s counsel opened the door to additional questions from the government
on the subject of acceptance of responsibility. See United States v. Walker, 613
F.2d 1349, 1353 (5th Cir. 1980).        The district court was well within its
discretion to allow the government to elaborate more fully on that line of
questioning. See id. Even if it were error to allow the government to delve into
what was said to the witness, the fact that the testimony could be challenged
at a later time means that the decision was not prejudicial. See United States
v. Martinez, 151 F.3d 384, 390 (5th Cir. 1998). Additionally, because Keith
could further challenge the testimony, any error was harmless. See Franklin,
561 F.3d at 404. Finally, the court’s decision to preclude re–cross examination
was well within its discretion. See United States v. Fields, __ F.3d __, No. 13-
70025, 2014 WL 3746479, at 19-20 (5th Cir. July 30, 2014).
      As Keith’s points of evidentiary error are without merit, we conclude
that, when viewed in the light most favorable to the verdict, the record contains
sufficient evidence to allow a rational jury to conclude beyond a reasonable




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                              No. 13-30837

doubt that Keith possessed with intent to distribute 28 grams or more of
cocaine base. See Vargas-Ocampo, 747 F.3d at 301.
     The convictions as to both counts are AFFIRMED.




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