     13-3200-cr
     United States v. McLeod

                          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 A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 18th day of December, two thousand fifteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                PIERRE N. LEVAL,
 8                GUIDO CALABRESI,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13                Appellee,
14
15                    -v.-                                               13-3200-cr
16
17       JARMAAL MCLEOD,
18                Defendant-Appellant.
19       - - - - - - - - - - - - - - - - - - - -X
20
21       FOR APPELLANT:                        JOHN S. WALLENSTEIN, Law Office
22                                             of John S. Wallenstein, Garden
23                                             City, NY.
24
25       FOR APPELLEE:                         ILAN GRAFF (Margaret Garnett, on
26                                             the brief), for Preet Bharara,
27                                             United States Attorney for the


                                                  1
 1                              Southern District of New York,
 2                              New York, NY.
 3
 4        Appeal from a judgment of the United States District
 5   Court for the Southern District of New York (Preska, CJ.).
 6
 7        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 8   AND DECREED that the judgment of the district court be
 9   AFFIRMED.
10
11        Jarmaal McLeod appeals from the judgment of the United
12   States District Court for the Southern District of New York
13   (Preska, CJ.) convicting him of (i) distribution and
14   possession with the intent to distribute crack cocaine, and
15   (ii) the conspiracy to do so. McLeod was sentenced chiefly
16   to 150 months’ imprisonment. McLeod challenges the
17   sufficiency of the evidence underlying his two convictions
18   and the district court’s refusal to give a “buyer/seller”
19   instruction. We assume the parties’ familiarity with the
20   underlying facts, the procedural history, and the issues
21   presented for review.
22
23        1. A defendant challenging the sufficiency of the
24   evidence underlying his conviction at trial “bears a heavy
25   burden” because our standard of review is “exceedingly
26   deferential”: we “must view the evidence in the light most
27   favorable to the government, crediting every inference that
28   could have been drawn in the government’s favor,” and will
29   uphold the judgment if “any rational trier of fact could
30   have found the essential elements of the crime beyond a
31   reasonable doubt.” United States v. Coplan, 703 F.3d 46, 62
32   (2d Cir. 2012) (internal citations and quotation marks
33   omitted).
34
35        The “typical buy-sell scenario” involves “a casual sale
36   of small quantities of drugs,” which, without more, cannot
37   establish a conspiracy to distribute because there is no
38   separate criminal object. United States v. Medina, 944 F.2d
39   60, 65 (2d Cir. 1991). However, where “there is advanced
40   planning among the alleged co-conspirators to deal in
41   wholesale quantities of drugs obviously not intended for
42   personal use,” then “the participants in the transaction may
43   be presumed to know that they are part of a broader
44   conspiracy.” Id. at 65-66. Additional circumstances that
45   support an inference of conspiracy include “prolonged
46   cooperation between the parties, a level of mutual trust,
47   standardized dealings, [and] sales on credit.” United

                                  2
 1   States v. Hawkins, 547 F.3d 66, 71 (2d Cir. 2008) (internal
 2   citations and quotation marks omitted).
 3
 4        The government presented more than enough evidence to
 5   justify the jury’s finding that McLeod was a co-conspirator
 6   in the larger narcotics distribution conspiracy. McLeod
 7   purchased crack cocaine from a single conspiracy member in
 8   wholesale quantities at wholesale prices at regular,
 9   frequent intervals. McLeod did this because he was a
10   distributor himself, reselling the crack cocaine to his own
11   customers. And he discussed the needs and complaints of his
12   customers with his supplier, a member of the conspiracy.
13   Unlike the defendant in United States v. Brock, 789 F.3d 60,
14   64 (2d Cir. 2015), McLeod had a single, regular supplier
15   from whom he purchased wholesale quantities of narcotics at
16   wholesale prices and with whom he shared information about
17   his own customers.
18
19        There was also sufficient evidence for the jury to
20   conclude that McLeod committed the substantive offense of
21   possession with the intent to distribute on November 2,
22   2009. On that day, the police recorded McLeod speaking with
23   his supplier in the conspiracy about purchasing a large
24   amount of crack cocaine using coded language, and thereafter
25   observed him enter the supplier’s car. The record at trial
26   established that McLeod frequently purchased narcotics from
27   this supplier and this supplier regularly used his car to
28   conduct drug transactions with distributors. A rational
29   juror could have inferred beyond a reasonable doubt that
30   McLeod purchased crack cocaine that day with the intent to
31   sell it.
32
33        2. “To secure reversal based on a flawed jury
34   instruction, a defendant must demonstrate both error and
35   ensuing prejudice.” United States v. Quinones, 511 F.3d
36   289, 313-14 (2d Cir. 2007). We review a district court’s
37   refusal to give a jury instruction de novo, but “will
38   reverse only where the charge, viewed as a whole, either
39   failed to inform the jury adequately of the law or misled
40   the jury about the correct legal rule.” Id. at 314
41   (internal citations and quotation marks omitted).
42
43        When the facts presented “transcend the usual ‘buyer-
44   seller’ scenario” — meaning there is more than a “casual
45   sale of small quantities of drugs,” such as advanced
46   planning or wholesale quantities of narcotics — a district
47   court is justified in refusing to give the “buyer-seller”

                                  3
 1   instruction. Medina, 944 F.2d at 66. The relationship
 2   between McLeod and the other members of the conspiracy was
 3   not merely that of buyer and seller. As already
 4   established, the government presented sufficient evidence
 5   that McLeod was a distributor in the conspiracy, and
 6   regularly purchased wholesale quantities of narcotics at
 7   wholesale prices from a single supplier in the conspiracy.
 8   The district court did not err in declining to charge the
 9   jury as to the buyer-seller exception.
10
11        Accordingly, and finding no merit in McLeod’s other
12   arguments, we hereby AFFIRM the judgment of the district
13   court.
14
15                              FOR THE COURT:
16                              CATHERINE O’HAGAN WOLFE, CLERK
17




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