                                                   NOT PRECEDENTIAL

          UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT
                    ____________

                         No. 08-2429
                        ____________

              UNITED STATES OF AMERICA

                              v.

                       HENRY JONES,
                         a/k/a Diddy


                         Henry Jones,
                                  Appellant

                        ____________

       On Appeal from the United States District Court
            for the Western District of Pennsylvania
                    (D.C. No. 06-cr-00048)
      District Judge: Honorable Maurice B. Cohill, Junior
                        ____________

         Submitted Under Third Circuit LAR 34.1(a)
                      May 19, 2010

Before: FUENTES, HARDIMAN and NYGAARD, Circuit Judges.

                    (Filed: May 21, 2010)


                        ____________

                 OPINION OF THE COURT
                      ____________
HARDIMAN, Circuit Judge.

       Henry Jones appeals his judgment of conviction. We will affirm.

                                             I.

       Because we write exclusively for the parties, we recount only the essential facts.

In 2005, officers of the Springboro, Pennsylvania police department began investigating a

crack cocaine distribution ring operating in their town. Officers suspected that the group

was led by Jerome “Boo” Morrow and included Boo’s sister, Jennia “Gwen” Morrow,

and the appellant, Henry “Diddy” Jones.

       To aid their investigation, police recruited a confidential informant, James

MacLaren, who had previously obtained crack from the group. Through Gwen,

MacLaren arranged to purchase two ounces of crack from Boo on February 28, 2006.

That evening, MacLaren, who was wearing a wire, drove with Gwen to Jones’s home in

Springboro. Officers observed Jones walk from Boo’s nearby house to MacLaren’s

vehicle, where Jones handed Gwen a bag containing crack cocaine.

       Gwen immediately realized that Jones had not delivered the agreed-upon amount

of crack and called Boo to request more. Jones quickly reappeared with a second bag.

After MacLaren questioned the weight of this second delivery as well, Gwen told him

that Jones frequently stole Boo’s crack and had likely skimmed some for himself. Several

days later, MacLaren reiterated his complaint to Gwen in a telephone conversation

recorded by the police. Gwen, however, merely repeated her belief that Jones took some



                                             2
of the crack, explaining that although Boo had confirmed the bags of crack were closed

when he gave them to Jones, the bags were open when Gwen and MacLaren received

them.

        In August 2006, a federal grand jury returned a two-count indictment against Boo,

Gwen, and Jones. Count One charged the trio with conspiracy to possess with intent to

distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 846. Count

Two charged the group with possession with intent to distribute and distribution of five

grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1). All three pleaded

not guilty. Following a one-day trial, a jury convicted the defendants on all counts. After

the District Court sentenced Jones to 63 months imprisonment, he appealed.1

                                              II.

                                              A.

        Jones first attacks the sufficiency of the evidence supporting the jury’s guilty

verdict. We apply a highly “deferential standard in determining whether a jury’s verdict

rests on sufficient evidence.” United States. v. Ozcelik, 527 F.3d 88, 93 (3d Cir. 2008).

Reviewing the evidence in the light most favorable to the Government, we will uphold

the jury’s verdict unless no “rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.” Id. (citations omitted). Jones thus “bears a very




        1
         The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1).

                                               3
heavy burden” to establish that the Government’s evidence was insufficient. Id. (internal

quotation marks omitted).

       Jones first contends the Government failed to prove that he knowingly joined the

conspiracy, arguing that the evidence showed only that he was a mere acquaintance of the

Morrows who ran occasional errands for Boo. Contrary to Jones’s protestations, the

evidence that he knowingly joined and participated in the conspiracy was overwhelming.

Though Gwen arranged the February 28th purchase, Jones was directly involved in the

transaction, making not one but two deliveries of crack cocaine to MacLaren that

evening. MacLaren himself testified that Jones had delivered crack to him on behalf of

Boo on at least two prior occasions, suggesting that Jones had a regular and well-defined

role in the conspiracy.2 Moreover, the jury heard recordings in which both of the

Morrows discussed their belief that Jones was skimming crack from deliveries,

confirming that Jones was an active participant in their operation. Cf. United States v.

Boria, 592 F.3d 476, 485 (3d Cir. 2010) (holding co-conspirator testimony sufficient to

show that a defendant joined a conspiracy with knowledge of its illegal objective). The

foregoing evidence was more than sufficient for a jury to infer that Jones conspired with

the Morrows to possess and distribute crack cocaine.




       2
         Jones attacks MacLaren’s credibility, arguing that he “had a long history of
dishonesty . . . .” On appeal, however, we do not weigh the evidence or question the
credibility of witnesses. United States v. Soto, 539 F.3d 191, 194 (3d Cir. 2008). Though
the jury was free to disbelieve MacLaren, it chose not do so.

                                             4
       Jones also argues that the evidence at trial was insufficient to show that he knew

the bags he delivered to Gwen and MacLaren contained crack cocaine. To convict Jones

of possession of crack cocaine with intent to distribute, the Government had to show that

he knew the bags contained a controlled substance. See United States v. Bobb, 471 F.3d

491, 497 (3d Cir. 2006). And to convict Jones of conspiracy, the Government had to

demonstrate that Jones knew the conspiracy involved distribution of a controlled

substance, not some other form of contraband. See Boria, 592 F.3d at 481.

       The Government introduced ample evidence at trial from which a reasonable jury

could have inferred Jones’s knowledge. The jury could have concluded, for example, that

Jones knew the bags he delivered to MacLaren on February 28th contained crack because

both Boo’s and Gwen’s recorded statements suggested that he had opened them.

MacLaren also testified that two of Jones’s previous deliveries had been similarly

deficient, which allowed the jury to infer that Jones regularly skimmed crack cocaine

from deliveries. Viewing these facts in the light most favorable to the Government, there

was sufficient evidence for the jury to conclude not only that Jones knew he was dealing a

controlled substance, but also that he knew it was crack cocaine.

                                            B.

       Jones next contends that the District Court erred by admitting a recording of Gwen

explaining to MacLaren why she believed Jones was responsible for the missing crack.

Because Gwen did not testify, Jones moved to exclude the recording as violating his Sixth



                                             5
Amendment right to confront witnesses against him, as articulated in Bruton v. United

States, 391 U.S. 123 (1968). The District Court denied the motion and admitted the

recording into evidence. On appeal, Jones reiterates his Bruton argument.

       In Bruton, the Supreme Court held that in certain circumstances, admission of a

non-testifying co-defendant’s confession that inculpates the defendant violates the Sixth

Amendment’s Confrontation Clause because the defendant has no opportunity for cross

examination. 391 U.S. at 126. We have interpreted Bruton’s rule broadly, applying it not

only to custodial confessions but also to informal statements such as Gwen’s. See, e.g.,

United States v. Ruff, 717 F.2d 855, 857-58 (3d Cir. 1983).

       Subsequent to Bruton, the Supreme Court held that admission of a non-testifying

co-conspirator’s statement against a defendant does not offend the Confrontation Clause

as long as the statement satisfies the co-conspirator exclusion of Federal Rule of Evidence

801(d)(2)(E). Bourjaily v. United States, 483 U.S. 171, 182-83 (1987). Relying on

Bourjaily, the District Court held that Gwen’s statements were not hearsay under Rule

801(d)(2)(E) and therefore were not barred by Bruton.

       Jones does not dispute this conclusion on appeal. Nor could he. As discussed

previously, the Government’s evidence was more than sufficient to demonstrate that

Gwen and Jones were co-conspirators. Moreover, Gwen’s statements placating

MacLaren, a regular customer of the group, were made in furtherance of the conspiracy.




                                            6
Because Gwen’s statements satisfied Rule 801(d)(2)(e), the District Court did not err in

admitting the recording.

                                             C.

       Finally, Jones claims the District Court erred by allowing MacLaren to testify

about Jones’s prior drug deliveries. Jones contends this testimony was inadmissible

pursuant to Federal Rule of Evidence 404(b) because it was offered only to show Jones’s

propensity to engage in drug deals similar to the one that occurred on February 28th.

       Under Rule 404(b), evidence of a defendant’s “other crimes, wrongs or acts is not

admissible to prove the character of a person in order to show that he acted in conformity

therewith.” Fed. R. Evid. 404(b). However, such evidence is admissible to show, among

other things, a defendant’s knowledge or the existence of a plan or scheme. Id.

       Before admitting evidence of a defendant’s prior bad acts, a district court must

ensure that the evidence is both offered for a proper purpose under Rule 404(b) and

relevant under Rule 402. United States v. Sampson, 980 F.2d 883, 886 (3d Cir. 1992)

(citing Huddleston v. United States, 485 U.S. 681, 691-92 (1988)). Next, the district

court must consider whether the probative value of the evidence is substantially

outweighed by its potential for unfair prejudice under Rule 403. Id. Finally, the court

must instruct the jury to consider the evidence only for the limited purposes for which it is

admitted. Id.




                                             7
       Here, MacLaren’s testimony regarding Jones’s prior crack deliveries was both

relevant under Rule 402 and introduced for several permissible purposes under Rule

404(b). As noted previously, evidence that Jones skimmed from earlier deliveries

allowed the jury to infer that Jones knew the packages he delivered for Boo—including

the bags given to MacLaren on the 28th— contained crack, which the Government was

required to prove to convict Jones of both charged offenses. Jones’s prior conduct also

revealed the modus operandi of the conspiracy and demonstrated Jones’s regular and

well-defined role in the operation as Boo’s deliveryman.

       Jones’s principal argument on appeal is that the probative value of MacLaren’s

testimony was outweighed by its potential for unfair prejudice. However, “[w]hen a court

engages in a Rule 403 balancing and articulates on the record a rational explanation, we

will rarely disturb its ruling.” Sampson, 980 F.2d at 889. Here, the District Court

correctly found that the considerable probative value of MacLaren’s testimony

outweighed any danger of unfair prejudice. Furthermore, the District Court minimized

the potential for prejudice by giving the jury a thorough and comprehensive limiting

instruction. In light of the “considerable leeway” we afford district courts when they

make both Rule 404(b) and Rule 403 determinations, id. at 886, allowing MacLaren to

testify about Jones’s prior deliveries was not an abuse of discretion.

                                             III.

       For the foregoing reasons, we will affirm Jones’s judgment of conviction.



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