    16-1417-cr
    United States v. Faltine


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

                  At a stated term of the United States Court of Appeals for the Second
    Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
    City of New York, on the 7th day of April, two thousand seventeen.

    PRESENT:
                PETER W. HALL,
                GERARD E. LYNCH,
                CHRISTOPHER F. DRONEY,
                            Circuit Judges.
    _____________________________________

    UNITED STATES OF AMERICA,

                               Appellee,

                     v.                                                  16-1417-cr

    RASHAD GLYNN, JUSTIN JAIKARAN, COREY LEE,

                               Defendants,

    CLYDE FALTINE, AKA BLACKY,

                      Defendant-Appellant.
    _____________________________________

    For Appellant:                                 JILLIAN S. HARRINGTON (Martin J. Siegel,
                                                   New York, NY, on the brief) Monroe
                                                   Township, NJ.

    For Appellee:                                  JULIA NESTOR (PETER A. NORLING, on the
                                                   brief) Assistant United States Attorneys, for
                                                        Robert L. Capers, United States Attorney for
                                                        the Eastern District of New York.

        Appeal from a judgment of the United States District Court for the Eastern District of New

York (Matsumoto, J.).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

        Defendant-Appellant Clyde Faltine appeals his conviction of conspiracy to distribute and

possess with the intent to distribute cocaine and marijuana in violation of 21 U.S.C. § 846. (He

raises no challenge to his conviction, and concurrent ten-year sentence, for possessing those

substances with intent to distribute, in violation of 21 U.S.C. § 841.) His principal contention is that

there is insufficient evidence to establish beyond a reasonable doubt that he participated in the

conspiracy charged. He also claims that the district court erred in declining to give a multiple

conspiracies charge. We assume the parties’ familiarity with the underlying facts, procedural history,

and issues on appeal.

                                                       I.

        We review de novo a challenge to the sufficiency of the evidence, but will “uphold the

judgment[] of conviction if any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” United States v. Brock, 789 F.3d 60, 63 (2d Cir. 2015) (internal

quotation marks omitted). “In evaluating a sufficiency challenge, we must view the evidence in the

light most favorable to the government, crediting every inference that could have been drawn in the

government’s favor, and deferring to the jury’s assessment of witness credibility and its assessment

of the weight of the evidence.” United States v. Coplan, 703 F.3d 46, 62 (2d Cir. 2012) (internal

quotation marks omitted).

        To establish a conspiracy the Government must show an “agreement among two or more

persons to join in a concerted effort to accomplish an illegal purpose.” United States v. Parker, 554
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F.3d 230, 234 (2d Cir. 2009) . “As a literal matter, when a buyer purchases illegal drugs from a seller,

two persons have agreed to a concerted effort to achieve the unlawful transfer of the drugs from the

seller to the buyer.” Id. Our precedent is clear, however, “that the mere purchase and sale of drugs

does not, without more, amount to a conspiracy to distribute narcotics.” Brock, 789 F.3d at 63.

        The so-called “buyer-seller” rule, however, “does not protect either the seller or buyer from

a charge they conspired together to transfer drugs if the evidence supports a finding that they shared

a conspiratorial purpose to advance other transfers, whether by the seller or by the buyer.” Parker,

554 F.3d at 235. Accordingly, where the “evidence supports a finding that the purchaser not only

purchased drugs, but in doing so also in some sense promoted the seller’s drug distribution venture

and intended to further it, . . . the seller and buyer may be found to be in a conspiratorial agreement

to further the seller’s other sales.” Id. (internal citations, quotation marks, and alterations omitted).

Additionally, “if the evidence supports a finding that the seller shared with the buyer an interest in

furthering resale by the buyer, the seller and buyer may be found to be in a conspiratorial agreement

to further the buyer’s resales.” Id. We have “identified certain factors relevant to the analysis,

including whether there was a prolonged cooperation between the parties, a level of mutual trust,

standardized dealings, sales on credit, and the quantity of drugs involved.” Brock, 789 F.3d at 64

(internal quotation marks and alterations omitted).

        Considering the relevant factors, we conclude that there was sufficient evidence of a shared

conspiratorial purpose between Voisin and Faltine. The evidence adduced at trial demonstrates an

extensive, three-year relationship between Faltine and Voisin in which each depended on the other

to distribute drugs. During their relationship, Voisin and Faltine would conduct their business at

three different locations, including Faltine’s restaurant, the yard he rented, and his apartment in

Brooklyn. Moreover, Voisin made an estimated 50 deliveries to Faltine at those three locations, and

Faltine would visit Voisin’s newsstand to conduct drug transactions. Over the course of their

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relationship, Voisin sold Faltine approximately 40 to 50 kilograms of cocaine and 40 to 50 pounds

of marijuana, which Faltine then redistributed.

        Perhaps most importantly, Voisin made sales of large quantities of drugs on credit to Faltine.

By 2011, Faltine was paying Voisin exclusively on consignment—that is, Faltine would not pay

Voisin until he resold the drugs. Towards the end of their relationship, the drug transactions

between Faltine and Voisin consistently involved between two and five kilograms of cocaine. In

sum, Faltine and Voisin had developed an extensive partnership in which Faltine would purchase

large amounts of drugs from Voisin on credit for redistribution. Viewing the evidence in the light

most favorable to the Government, as we must, it is clear that significant indicia of a conspiratorial

purpose existed from which a rational trier of fact could conclude Faltine was guilty beyond a

reasonable doubt of participating in the charged conspiracy. See, e.g., United States v. Rojas, 617 F.3d

669, 672, 675–76 (2d Cir. 2010) (affirming conspiracy conviction when evidence showed that seller

had a “longstanding” relationship with the buyer, provided the buyer with bail money because the

buyer “was moving product” for him, and sold drugs to the buyer on credit because he knew that

the buyer would resell a portion of the drugs); United States v. Hawkins, 547 F.3d 66, 75 (2d Cir. 2008)

(upholding conviction where buyer repeatedly purchased drugs on credit with the understanding that

he would resell the drugs and use the profits to repay the seller).

                                                   II.

        A defendant is not entitled to a multiple conspiracy charge where “only one conspiracy has

been alleged and proved.” United States v. Maldonado-Rivera, 922 F.2d 934, 962 (2d Cir. 1990). To

obtain a reversal for failure to give a requested multiple conspiracies charge, “a defendant must show

both that there was evidence of separate networks operating independently of each other and that he

suffered substantial prejudice resulting from the failure to give the requested charge.” United States v.

Cusimano, 123 F.3d 83, 89 (2d Cir. 1997) (internal quotation marks omitted). “A showing of

                                                    4
‘substantial prejudice’ requires the defendant to prove that the evidence in support of the conspiracy

or conspiracies in which he did not participate prejudiced the case against him with respect to the

conspiracy to which he was a party.” Id. “It is generally more difficult to make such a showing

where, as here, the trial was a short trial involving a single defendant.” Id.

        Here, at trial, the Government alleged and proved only one conspiracy: the agreement

between Voisin and Faltine, to distribute cocaine and marijuana in Brooklyn. While there was

evidence presented that the drugs were imported from Arizona and Trinidad and that Faltine had

knowledge of these sources, the Government never alleged that Faltine participated in such a

conspiracy. Furthermore, evidence of the Arizona and Trinidad supply chains merely provided

context as to the source of the drugs that Voisin was selling to Faltine for resale. In any case, to the

extent that there was any evidence establishing multiple networks, Faltine has not shown that he

suffered substantial prejudice. Faltine was tried alone, and the limited evidence of the Arizona and

Trinidad sources was not “markedly different” than the crimes of which Faltine was charged and

convicted. Cf. United States v. Alessi, 638 F.2d 466, 475 (2d Cir. 1980) (“[T]his was not a case in

which shocking or inflammatory evidence came in against co-defendants, but rather one in which

the crimes of the various appellants were not markedly different.” (internal quotation marks and

citations omitted)). The district court therefore properly declined to charge the jury on multiple

conspiracies.

        We have considered all of Faltine’s remaining arguments on appeal and determine that they

are without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.



                                                         FOR THE COURT:
                                                         Catherine O’Hagan Wolfe, Clerk




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