                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 18-2810
                                       ___________

                            UNITED STATES OF AMERICA

                                             v.

                                 GERMAINE HALL,
                                                Appellant
                       ____________________________________

                    On Appeal from the United States District Court
                                   of the Virgin Islands
                             Criminal No. 3-17-cr-00019-005
                    District Court Judge: Honorable Curtis V. Gomez
                      ____________________________________

                               Argued: December 10, 2019

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

                              (Opinion filed: July 31, 2020)
                                      ___________

                                        OPINION*
                                       ___________




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
McKee, Circuit Judge.

       Germaine Hall appeals the judgment of sentence that was imposed following his

conviction for various charges related to his conspiracy to distribute a controlled

substance. He challenges a jury’s verdict1 for conspiracy to possess cocaine with the

intent to distribute and the reasonableness of his 160-month sentence. He further argues

that prosecutorial misconduct, the erroneous admission of hearsay testimony, and the

District Court’s decision to allow the parties to stipulate to the admission of evidence

with an interrupted chain of custody affected the fairness of the proceedings thus denying

his right to due process. For the reasons that follow, we will affirm.2


                                              I.


       Hall’s first challenge concerns the denial of his renewed Rule 29 motion. After

several counts of the multi-count superseding indictment against Hall were dismissed and

he was acquitted by the jury of another count, Hall sought a Rule 29 Judgment of

Acquittal claiming that the government failed to prove the existence of an underlying

agreement or unity of purpose between him and his alleged conspirators. After

conducting a plenary review of the record and applying the same standard as the District

Court, we will affirm.3



1
  Hall proceeded to trial alone after the district court granted co-defendant Gerald
Mercer’s severance motion. App. 6, 22-23.
2
  The district court had jurisdiction pursuant to 18 U.S.C. § 3231, which grants to district
courts “original jurisdiction, exclusive of the courts of the States, of all offenses against
the laws of the United States.” This court has jurisdiction under 28 U.S.C. § 1291.
3
  United States v. Freeman, 763 F.3d 322, 343 (3d Cir. 2014).

                                              2
       The evidence presented of Hall’s involvement with his co-conspirators to possess

and distribute cocaine rested upon the testimony of cooperating witness, Kishaun Carey.4

He testified that he was contacted by co-conspirator Craig Richardson when there was a

shipment ready for pick up and distribution.5 Richardson would sometimes direct him to

pick up a shipment from co-conspirator Makimba Barry in West Palm Beach, Florida.6

On other occasions Richardson would tell Carey to pick up the shipment from Hall, in

Orlando, Florida.7 Carey testified to picking up three shipments from Hall between late

2015 and May 2016 at Richardson’s direction.8 Carey did not have any other contact

with Hall.9 After he sold the cocaine, Carey contacted Richardson to find out who would

be picking up the proceeds.10 Either co-conspirator Jamal Haynes or Barry came to

collect.11


       Viewing this testimony and all reasonable inferences therefrom in a light most

favorable to the government, we must affirm the District Court. As we have stated many



4
  A second witness, Kinia Blyden, testified to transporting cocaine from St. Thomas to
Florida in June 2016. App. 292. She testified that co-conspirator Jamal Haynes picked
her up from the airport when she arrived in Florida and drove her to a residence where
she left the drugs, packaged in a “clear seal,” with Hall. App. 295. As the jury acquitted
Hall of a substantive count concerning this interaction charged at Count Four, we will not
consider this testimony in reviewing the sufficiency of the evidence supporting Hall’s
conspiracy charge.
5
  App. 261-262, 269.
6
  App. 262, 264.
7
  App. 265, 267.
8
  App. 268, 271.
9
  App. 280.
10
   App. 264.
11
   App. 270.

                                            3
times before, “a conspiracy may be proven entirely by circumstantial evidence.”12

Moreover, the government need not prove “each defendant knew all of the conspiracy’s

details, goals, or other participants” to demonstrate a unity of purpose, intent to achieve a

common goal, and agreement to work towards that goal.13 The fair inferences from

Carey’s interactions and connections with Richardson, Hall, Haynes and Barry

demonstrate Hall’s knowledge of the drug conspiracy and its aim.14 Carey’s interactions

with Hall cannot be reduced down to a mere “buyer-seller relationship” as Richardson

directed Carey as to when to get shipments from Hall and then Richardson directed other

individuals to coordinate payments with Carey. Additionally, the length of Carey’s

affiliation with Richardson, Hall, Barry, and Haynes evidences his comprehension of the

conspiracy’s scope and serves as additional circumstantial knowledge of Hall’s

membership.15


       Hall next argues that there was a material variance between the single conspiracy

charged in the indictment and the evidence presented at trial. As Hall failed to raise his

variance argument with the District Court, we review it for plain error.16 Hall again bases

his claim on the government’s alleged failure to put forth evidence from which a jury




12
   United States v. Claxton, 685 F.3d 300, 309 (3d Cir. 2012) (quoting United States v.
Wexler, 838 F.2d 88, 90 (3d Cir. 1988)).
13
   United States v. Gibbs, 190 F.3d 188, 197 (3d Cir. 1999).
14
   Claxton, 685 F.3d at 310 (inferring similar knowledge from circumstantial evidence).
15
   United States v. Pressler, 256 F.3d 144, 152 (3d Cir. 2001).
16
  See United States v. Vosburgh, 602 F.3d 512, 531 (3d Cir. 2010); United States v. Daraio, 445
F.3d 253, 259 (3d Cir. 2006).

                                               4
could infer his knowledge of, and desire to participate in the charged conspiracy. For the

reasons stated above, we find no error here, plain or otherwise.


          When reviewing the record in a light most favorable to the government and

assessing whether there was a variance, we consider: (1) “whether there was a common

goal among the conspirators;” (2) “whether the agreement contemplated bringing to pass

a continuous result that will not continue without the continuous cooperation of the

conspirators;” and (3) “the extent to which the participants overlap in the various

dealings.”17 In assessing whether the conspirators shared a common goal we consider the

“underlying purpose of the alleged criminal activity” in broad terms.18 Thus, framing the

underlying purpose as a desire to obtain and distribute cocaine for profit, we find

sufficient evidence that Hall had a unity of purpose with his alleged co-conspirators,

intent to possess and distribute cocaine, and an agreement to work with them in

furtherance of that goal.19


          Third, Hall challenges the reasonableness of his sentence, arguing that the District

Court erroneously factored into his sentence amounts of cocaine not attributable to him.

As Hall concedes he failed to preserve his sentencing argument in the District Court,20 we

review it for plain error.21 Hall fails to meet his burden of plain error. He attempts to



17
   United States v. Kemp, 500 F.3d 257, 287 (3d Cir. 2007) (citation omitted).
18
   United States v. Rigas, 605 F.3d 194, 214 (3d Cir. 2010) (en banc).
19
   United States v. Pressler, 256 F.3d 144, 147 (3d Cir. 2001) (describing sufficient
evidence to evince a conspiracy).
20
     Appellant’s Br. at 1, 16.
21
     United States v. Stinson, 734 F.3d 180, 186 (3d Cir. 2013).

                                                5
limit his exposure to only the amount Carey testified to obtaining from him. However, as

there was sufficient evidence supporting the jury’s verdict that Hall was a member of a

conspiracy, the District Court appropriately considered the relevant conduct of Hall and

his co-conspirators when fashioning his sentence.22 As testified to by his co-conspirators,

that conduct included the possession and distribution of 50 to 150 kilograms of cocaine.

Accordingly, the Court finds no plain error with this finding nor does it find the resulting

sentence to be unreasonable.23


         Hall next claims that the District Court permitted prosecutorial misconduct by way

of leading questions and efforts to introduce inadmissible evidence. As Hall did not

object to any of the Government’s questions, his claims are reviewable only for plain

error.24 His claims are completely without merit. The court consistently and properly

policed the conduct of the prosecution during the trial with reprimands when the

questioning became leading on direct, side bars to ensure witnesses would be providing

relevant testimony, questioning regarding the admissibility of proffered exhibits, and

consistent balancing of the prosecutor’s questions under Rule 403 of the Federal Rules of

Evidence.25 Hall also claims that Carey perjured himself by testifying that he saw Hall




22
  Gibbs, 190 F.3d at 214.
23
  Id.; see also United States v. Booker, 543 U.S. 220, 261 (2005) (discussing the
benchmark for a reasonable sentence).
24
  See Gov’t of V.I. v. Mills, 821 F.3d 448, 456 (3d Cir. 2016) (“Where, as here, a defendant did
not object to prosecutorial misconduct at trial, we review for plain error.”); United States v.
Fulton, 837 F.3d 281, 302 (3d Cir. 2016) (questions that misstate the evidence are reviewed for
plain error.)
25
     See, e.g., App. 108, 152, 204-06, 208, 375.

                                                6
with fourteen kilograms of cocaine and the prosecution failed to correct that testimony.

We disagree. As Hall concedes, the Government’s failure to correct perjured testimony

is reversible only if, among other things, (1) the witness actually committed perjury and

(2) “there is a reasonable likelihood that the false testimony could have affected the

verdict.”26 “Perjury” is “false testimony concerning a material matter with the willful

intent to provide false testimony, rather than as a result of confusion, mistake, or faulty

memory.”27 Hall has not shown that Carey held this intent.28 In addition, at trial, Carey

did not attribute to Hall any drug amounts beyond three deliveries totaling eight or

nine kilograms.29 Thus, there is no reasonable likelihood that Carey’s testimony affected

the verdict. Further, Hall elicited Carey’s statement about the “additional cocaine” as

impeachment on a collateral matter. Although Carey denied the statement, in light of the

other evidence of Hall’s guilt, it is not likely that the statement had any effect on the

verdict.


       Defendant’s remaining arguments regarding the admission of stipulated evidence

and his co-conspirator’s statements are also meritless. Hall’s counsel stipulated to certain

evidence with Hall’s approval, and by stipulating to the chain-of-custody evidence Hall




26
  Appellant’s Br. at 25 (quoting United States v. Hoffecker, 530 F.3d 137, 183 (3d Cir. 2008));
see also United States v. John-Baptiste, 747 F.3d 186, 210 (3d Cir. 2014) (citation omitted).
27
   Hoffecker, 530 F.3d at 183.
28
   See Appellant’s Br. at 25-26.
29
   See App. 268.

                                                7
waived his rights to appeal the issue.30 Additionally, the admissions of co-conspirators

that are made during and in furtherance of the conspiracy are not hearsay.31


                                                       II.


       For the reasons set forth above, we will affirm the judgment of the District Court.




30
   See Gov’t. of V.I. v. Rosa, 399 F.3d 283, 290-91 (3d Cir. 2005) (“[A]n explicit agreement or
stipulation constitutes a waiver of rights if the defendant was aware of the right.”); see also
United States v. Ceballos, 789 F.3d 607, 613 (5th Cir. 2015) (“[B]ecause we conclude that [the
defendant] waived her right of confrontation through her counsel’s unchallenged stipulation to
the admission of the testimony, her claim is entirely unreviewable.” (citation and internal
quotation marks omitted)).
31
  Fed. R. Evid. 801(d)(2)(E); Bourjaily v. United States, 483 U.S. 171, 182 (1987),
superseded by statute on other grounds United States v. Bobb, 471 F.3d 491, 498 (3d Cir.
2006).


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