                                                                         NOT PRECEDENTIAL

                           UNITED STATES COURT OF APPEALS
                                FOR THE THIRD CIRCUIT
                                     ___________

                                           No. 18-3323
                                          ____________


                               UNITED STATES OF AMERICA

                                                v.

                                    GERALD MERCER
                                              Appellant
                          ____________________________________

                                On Appeal from the District Court
                                       of the Virgin Islands
                                 Criminal No. 3-17-cr-00019-002
                        District Court Judge: Honorable Curtis v. Gomez
                         ____________________________________

                        Submitted Pursuant to Third Circuit L.A.R 34.1(a)
                                      December 10, 2019

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

                                  (Opinion filed: July 30, 2020)
                                         ___________

                                           OPINION*
                                          ___________


McKee, Circuit Judge.

       Gerald Mercer challenges his conviction for conspiracy to possess cocaine with the intent

to distribute. He argues that the District Court erred by not granting his Rule 29 motion for




This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
judgment of acquittal. For the reasons that follow we will affirm the court’s ruling and Mercer’s

conviction.1

                                                 I.

        Mercer claims an alleged variance between the single conspiracy charged in Count

Fourteen of the Third Superseding Indictment and the purported evidence of multiple

conspiracies presented at trial. At Count Fourteen, a grand jury charged Mercer with conspiring

with Makimba Barry and Neal Chesterfield to possess with the intent to distribute 75 kilograms

or more of cocaine from “on or about January 1, 2012, the exact date being unknown to the

Grand Jury, and continuing thereafter up to and including on or about November 1, 2016.”2

Mercer argues that Chesterfield’s testimony that he stopped smuggling cocaine with Mercer in

December 2014 and thereafter only worked with Barry until his arrest in September 2016,

demonstrates the existence of two conspiracies and a variance from the indictment warranting his

acquittal.

        In its review of Mercer’s Rule 29 motion, the district court viewed the evidence in a light

most favorable to the prosecution and determined a reasonable jury could find guilt beyond a

reasonable doubt.3 The jury subsequently convicted Mercer. In our review of the district court’s

ruling, we apply the same standard as that court under a de novo review of the record.4 We must

grant Mercer’s motion and vacate his conviction if “(1) there is a variance between the

indictment and the proof presented at trial and (2) the variance prejudices a substantial right.”5



1
  The district court had jurisdiction pursuant to 18 U.S.C. § 3231. This court has jurisdiction
under 28 U.S.C. § 1291.
2
  App. 37-38.
3
  United States v. Freeman, 763 F.3d 322, 343 (3d Cir. 2014).
4
  Id.
5
  United States v. Kemp, 500 F.3d 257, 287 (3d Cir. 2007) (citing United States v. Kelly, 892
F.2d 255, 258 (3d Cir. 1989)).


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Whether a single conspiracy or multiple conspiracies existed is a question of fact that must be

determined by the jury.6 Thus, after a verdict, our application of the same standard used by the

district court includes consideration of the sufficiency of the evidence supporting the jury’s

finding of a single conspiracy in a light most favorable to the government.7


       When the District Court heard Chesterfield’s testimony that he had stopped smuggling

cocaine with Mercer in December 2014 after multiple occasions of not receiving full payment8 it

questioned counsel at side bar about how, if at all, Mercer was involved in what appeared to be a

conspiracy between only Chesterfield and Barry.9 The prosecution argued that the original

conspiracy continued past December 2014 because “it was [Mercer’s] mod[u]s operandi, [and]

he [was] the one who established th[e] system of trafficking [the] cocaine.”10 Additionally, the

prosecution presented a witness, Vanier Murraine, who transported cocaine for Barry beginning

in March of 2016. Murraine testified that Barry claimed Mercer was his supplier and had been

since 2011.11

                                                 B.


        Mercer’s argument rests on Chesterfield’s testimony that he and Mercer stopped

trafficking drugs together after December 2014. Assuming Mercer is correct and the prosecution

failed to establish that he was indirectly supplying the drugs sold by Chesterfield after December

2014, Mercer has nonetheless failed to show prejudice to some substantial right.12 Under the



6
  United States v. Perez, 280 F.3d 318, 345 (3d Cir. 2002).
7
  Kemp, 500 F.3d at 287.
8
  App. 154, 158, 161.
9
  App. 159-160.
10
   App. 161.
11
   App. 218.
12
   United States v. Vosburgh, 602 F.3d 512, 532 (3d Cir. 2010).


                                                 3
variance doctrine, as we explained in United States v. Camiel,13 prejudice occurs where (1) “the

guilt from one alleged co-schemer [is transferred] to another,” (2) a defendant is left with

inadequate notice of the actual charges being brought against him and is therefore unable to

prepare a proper defense, or (3) a defendant is put in the position being charged for the same

offense twice.14

       However, Mercer cannot show a prejudicial spillover effect where he was tried alone and

the district court struck Murraine’s testimony. Furthermore, the District Court repeatedly told

the jury to “disregard” most of the evidence of Chesterfield and Barry’s 2015-2016 activities,

making clear that the evidence could not be considered at all in the jury’s deliberations.15

Because “juries are presumed to follow their instructions,”16 the instructions are a strong

indication that the evidence did not prejudice Mercer.17 He also cannot claim that he was

prevented from adequately preparing a defense for a conspiracy of shorter duration than set forth

in the indictment, especially given that the conspiracy adduced at trial was of shorter duration

than that set forth in the indictment. Mercer’s trial involved a single defendant and lasted fewer

than three days. Moreover, the Government’s theory of the case was straightforward, and the

evidence was easy to follow.18 Finally, as Mercer was only convicted of one count in a multi-




13
   689 F.2d 31, 38 (3d Cir. 1982).
14
   328 U.S. 750 (1946).
15
   App. 288.
16
   Zafiro v. United States, 506 U.S. 534, 540 (1993) (quoting Richardson v. Marsh, 481 U.S. 200,
211 (1987).
17
   See, e.g., United States v. Fattah, 914 F.3d 112, 1878 (3d Cir. 2019) (rejecting a claim of
prejudicial spillover in light of the “Court’s instructions to consider and weight separately the
evidence on each count as to each defendant”); United States v. Hoffecker, 530 F.3d 137, 190 (3d
Cir. 2008) (similar); United States v. Tyler, 878 F.2d 753, 761 (3d Cir. 1989) (similar).
18
   See Kemp, 500 F.3d at 292 (“[T]he danger of prejudice [resulting from a variance] increases
along with the number of conspiracies and individuals that make up the wrongly charged single
conspiracy.”).


                                                 4
count indictment, and offers no argument as to how any variance could subject him to trial for

the same offense in the future,19 he is unable to show that he was prosecuted twice for the same

offense.

                                                  II.

          For the foregoing reasons, we will affirm the district court’s judgment.




19
     Appellant’s Br. at 14.



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