                                               NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT

                     _____________

                      No. 12-1378
                     _____________


           UNITED STATES OF AMERICA

                            v.

                   FRANCO BADINI,

                                      Appellant
                     ____________

     On Appeal from the United States District Court
         for the Western District of Pennsylvania
                 (No. 2-09-cr-00325-014)
     District Judge: Honorable Terrence F. McVerry

    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                     May 16, 2013

                     ____________


Before: SMITH, FISHER, and CHAGARES, Circuit Judges.

                  (Filed: May 23, 2013)

                     ____________

                       OPINION
                     ____________
CHAGARES, Circuit Judge.

       Appellant Franco Badini was convicted by a jury of conspiracy to distribute

cocaine, and the District Court sentenced him to twenty years of imprisonment. He now

appeals both his conviction and sentence. For the reasons set forth below, we will affirm.

                                             I.

      We write solely for the parties and will therefore recount only those facts that are

essential to our disposition. In March of 2010, a grand jury returned an indictment

charging various crimes against sixteen defendants who were allegedly part of a drug

ring. Badini was indicted on only one count, which charged him with conspiracy to

distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 846.

      Most defendants pled guilty, but Badini elected to try his case to a jury. At trial,

the Government introduced evidence designed to show that Badini was involved with the

United States branch of a cocaine-trafficking organization based in Mexico. The United

States branch of the organization was headed by Emir Dadanovic, a Bosnian national

living in Indianapolis. Dadanovic employed several salesmen to cover various

geographic areas, including Omer Dugalic, who sold drugs in Pennsylvania. At some

point, Dugalic began providing cocaine to David Curran, a resident of Upper St. Clair,

Pennsylvania. In 2009, the Government began surveilling Curran‟s activities. The

Government observed Dugalic visiting Curran to provide him with cocaine, and alleged

at trial that Badini was one of Curran‟s associates who would often buy and resell

cocaine that Curran obtained from Dugalic.


                                             2
      The jury convicted Badini of conspiracy to distribute cocaine after hearing

evidence including many taped conversations involving Badini and Curran. The District

Court sentenced Badini to twenty years of imprisonment, which was the mandatory

minimum because he had a previous drug conviction. Badini now appeals, arguing that

he was convicted on insufficient evidence, that the District Court erroneously admitted

prejudicial testimony, and that the Government conducted plea negotiations improperly.

                                           II.1

                                            A.

      Badini first asserts that the Government did not present evidence sufficient to

demonstrate that he was part of the conspiracy involving Curran and Dugalic. He argues

that while the evidence may have shown that he bought drugs from Curran, there was

nothing to prove that Badini shared a common purpose with the conspirators.

      When a defendant appeals a jury verdict based on alleged insufficiency of the

evidence, he has a steep hill to climb. We must view the evidence in the light most

favorable to the Government and uphold the verdict unless no rational trier of fact could

have found that the essential elements of the crime were proven. United States v. Dent,

149 F.3d 180, 187 (3d Cir. 1998).

      We apply this deferential standard to determine whether the Government met its

burden of proving a conspiracy, which consists of three elements: (1) unity of purpose

between the conspirators; (2) intent to achieve a common goal; and (3) an agreement to


1
  The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate
jurisdiction pursuant to 28 U.S.C. § 1291.
                                            3
work together to achieve the goal. United States v. Gibbs, 190 F.3d 188, 197 (3d Cir.

1999). The Government may prove the elements of a conspiracy through exclusively

circumstantial evidence. Id. While Badini is correct that a mere buyer-seller relationship

does not amount to a conspiracy, “[t]he government need not prove that each defendant

knew all of the conspiracy‟s details, goals, or other participants.” Id. We have held that

when a defendant is a buyer who has limited dealings with a conspiracy, we should

examine several factors to determine whether his purchases are circumstantial evidence

of an intent to join the conspiracy. Id. at 199. Among the factors are the length of

affiliation between buyer and seller, whether there is a demonstrated level of mutual trust,

whether there is an established method of payment, and the extent to which the

transactions are standardized. Id. In Gibbs, we also noted that other courts have looked

to whether the buyer bought large amounts of drugs and whether the buyer purchased the

drugs on credit. Id.

       The Government argues that under Gibbs, its evidence was easily sufficient for the

jury to conclude that Badini intended to join the conspiracy. During the trial, Dugalic

testified that he met Badini on several occasions when Badini was buying cocaine from

Curran. On one occasion, Dugalic brought Curran two kilograms of cocaine, and then

saw Curran sell one of the kilograms to Badini. Appendix (“App.”) 519. Dugalic also

saw Curran show Badini how to “cut the coke” because Badini had never done it before.

Id. He testified that after Badini bought a kilogram of cocaine, Badini returned later the

same day to pay Curran $36,000. App. 543. The Government also introduced an audio

tape of a telephone call between Curran and Badini in which Curran told Badini to “[s]tay

                                             4
on the ball.” App. 1101. A Government witness testified that Curran‟s comment was

meant to encourage Badini to “get the money in order.” App. 430. The Government

played another tape of a call between Curran and Badini in which the two discussed

Curran adding “comeback” to the cocaine. After discussing a delivery, Badini told

Curran, “If he bring it, I‟ll unload his shit. I load everything you got.” App. 1186. Later,

Curran told Badini to “[g]ive [him] . . . that four by tomorrow.” App. 1187.

       Based on this evidence, it was rational for the jury to conclude that Badini‟s

purchases were “step[s] in achieving the conspiracy‟s common goal of distributing

cocaine for profit.” Gibbs, 190 F.3d at 197 (quotation marks omitted). Government

evidence suggested that the relationship between Curran and Badini lasted for at least

several months; that they operated with a level of trust such that Badini could make

purchases on credit; that Badini bought large amounts of drugs and sought to buy as

much as possible when Curran received deliveries; that Badini met Curran‟s supplier and

discussed deliveries that would be made to Curran; that Curran and Badini discussed

Badini‟s plans to resell the cocaine after purchasing it; and that Curran assisted Badini

with altering the cocaine for resale. Badini ignores much of this evidence in his briefs,

simply stating that he did not make deals with other co-conspirators and that he was

unsure of the roles of co-conspirators he met. Yet the jury was entitled to make

inferences based on the time Badini spent with Curran and Dugalic; when it added all of

the evidence together, the jury rationally concluded that Badini was not merely an

occasional buyer, but played a role in the conspiracy. Thus, we reject Badini‟s challenge

to the sufficiency of the evidence.

                                             5
                                              B.

       Badini next argues that the conviction should be reversed because the District

Court improperly admitted testimony of Government witness Shane Hennen, who

testified that he had bought and sold drugs with Badini in transactions unrelated to the

conspiracy involving Curran.

       Before trial, the Government provided Badini with notice that it would introduce

Hennen‟s testimony under Federal Rule of Evidence 404(b). That Rule prohibits use of

evidence of a previous crime to prove a person‟s character, but allows the same evidence

for other purposes, such as to show motive, intent, or knowledge. “To be admissible

under Rule 404(b), evidence of uncharged crimes or wrongs must (1) have a proper

evidentiary purpose; (2) be relevant; (3) satisfy Rule 403;2 and (4) be accompanied by a

limiting instruction (where requested) about the purpose for which the jury may consider

it.” United States v. Green, 617 F.3d 233, 249 (3d Cir. 2010). The District Court denied

Badini‟s motion to exclude Hennen‟s testimony, stating that evidence of prior cocaine

distribution was relevant to show intent or knowledge. App. 31. It also noted that our

Court “has stated on multiple occasions that prior instances of drug distribution . . . are

relevant to whether a defendant had an intent to distribute a controlled substance as

charged in the indictment.” App. 25-26.




2
  Rule 403 calls for evidence‟s exclusion if “if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing the
issues, misleading the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed. R. Evid. 403.
                                              6
       Badini‟s principal argument on appeal is that the District Court never performed

the Rule 403 balancing as required by the third prong of our Rule 404(b) test. Citing

United States v. Sampson, 980 F.2d 883, 889 (3d Cir. 1992), Badini maintains that if

such a weighing does not occur on the record, we must automatically reverse and remand.

Yet this argument exaggerates Sampson‟s holding and ignores our subsequent case law.

Indeed, Sampson addressed a 404(b) question and explained that where “the court failed

to perform [the requisite] analysis, or where its rationale is not apparent from the record,

there is no way to review its discretion.” Id. While we reversed and remanded that case

to the district court, we implied that such a result may not be required if the record

otherwise demonstrates the reasons for the district court‟s decision. Id. Several years

later, we provided clarification in United States v. Sriyuth, 98 F.3d 739 (3d Cir. 1996). In

Sriyuth, we cited Sampson, but continued by explaining that when we do not have the

means to assess a district court‟s 403 analysis, “we may review the record and conduct

the obligatory weighing ourselves.” Id. at 745 n.9 (citing United States v. Himelwright,

42 F.3d 777, 781 (3d Cir. 1994)). Thus, if the record is sufficient, we are not required to

reverse a conviction simply because the district court did not balance probative value

against prejudice on the record.

       Badini next maintains that if we perform our own Rule 403 analysis, we must

conclude that the Hennen testimony should have been excluded. Citing no case law in

support, Badini merely asserts that the testimony likely confused and misled the jurors by

making them believe he was on trial for separate drug crimes, and that they would

assume that he was guilty in this instance if he had dealt drugs in the past. With regard to

                                              7
probative value, Badini claims that Hennen‟s testimony was not necessary to prove

knowledge or intent since the Government presented other evidence on those issues.

       As noted by the District Court, in drug cases we have recognized the probative

value of evidence showing that a defendant has previously been involved in drug

transactions. See, e.g., Sampson, 980 F.2d at 887. Here, Hennen‟s testimony helped

establish Badini‟s knowledge of drug transactions and his intent to sell drugs that he

purchased. First, Hennen testified that he knew that Badini dealt cocaine. App. 848. He

also testified that after he purchased cocaine, Badini directed Hennen to the house of

Michael Law. Law owned a cocaine press, which was used to prepare cocaine for sale.

App. 845. The Government earlier presented evidence showing that Badini had entered

the same house while carrying a blue bag directly after meeting with Curran. App. 458-

60.

       These facts, if credited, made it more likely that Badini had knowledge of the

cocaine trade and intended to take part in that trade by selling cocaine after buying it

from Curran. For example, Hennen‟s testimony concerning the cocaine press added to

the likelihood that Badini was using the press to prepare cocaine for sale after purchasing

it from Curran.3 Thus, the evidence increased the chances that the jury would believe


3
  Though the conversation concerning the press occurred several weeks after Curran‟s
arrest, Hennen‟s testimony about his cocaine transactions with Badini largely overlapped
with the time span of the alleged conspiracy. We conclude that testimony concerning
Badini‟s knowledge about the cocaine press at Law‟s house in December 2009 is relevant
in assessing his role in the conspiracy that took place in the preceding months. See
United States v. Bergrin, 682 F.3d 261, 281 n.25 (3d Cir. 2012) (“[L]ight can be shed on
motive, intent, and the other issues listed in Rule 404(b)(2) as much by a subsequent
course of behavior as it can by a prior one.”).
                                              8
that Badini‟s dealings with Curran were more than that of a simple cocaine purchaser; it

helped show that Badini sold the cocaine that he purchased from Curran, and thus took

part in the scheme of buying cocaine and selling it for profit. Based on this, we do not

believe that any unfair prejudice or jury confusion outweighed the probative value of

Hennen‟s testimony. The questioning of Hennen made clear that his arrest for cocaine

was unrelated to the Curran/Badini conspiracy, and the District Court very carefully

instructed the jury on the permissible uses of the Hennen testimony. App. 977-79.

Though there may have been some risk that jurors would nevertheless make unwarranted

conclusions about Badini‟s propensity to sell cocaine, that risk was outweighed by the

probative value that Hennen‟s testimony carried in showing that Badini dealt cocaine —

as Badini himself argues, the Government‟s evidence as to Badini‟s role in his

interactions with Curran was not overwhelming.4 Our case law demonstrates that we

must reverse a ruling on these grounds only if the risk of unfair prejudice was much

greater than it was here. See, e.g., Green, 617 F.3d at 251-52 (in cocaine distribution

case, rejecting defendant‟s Rule 403 challenge to district court‟s admission of evidence




4
 Badini does not attempt to reconcile his position that the Government‟s evidence
concerning his knowledge of the conspiracy was insufficient with his position that the
Hennen testimony carried little probative value because the Government had already
presented evidence of Badini‟s knowledge and intent. Even if Hennen‟s testimony was
not directly aimed at showing Badini‟s involvement in the conspiracy with Curran, it is
clear that establishing his knowledge of the cocaine trade and Badini‟s intent to sell
cocaine are relevant in determining whether his interactions with Curran amounted to a
role in the conspiracy.
                                             9
that defendant sought to buy dynamite to kill officer that arrested him). Consequently,

we will affirm the District Court‟s decision to allow Hennen‟s testimony.5

                                             C.

       Badini also asks us to vacate his conviction or his sentence due to perceived flaws

in the Government‟s decision to seek a twenty-year sentence by filing an information

under 21 U.S.C. § 851.6

       Badini first asserts that the Government engaged in unfair plea bargaining because

it offered Badini a plea agreement containing a 180-month sentence, but stated that it

would seek the twenty-year mandatory minimum if Badini would not accept the deal.

Badini argues that part of the reason the plea deal failed was that he refused to cooperate

by providing information about criminal activities by another person. He cites case law

for the proposition that pretrial cooperation can create a risk of injury, but provides no

law to indicate that the Government may not make an offer contingent on cooperation.

As the District Court concluded, Badini has not demonstrated any vindictiveness by the

Government, and his argument concerning the unfairness of the plea negotiation is

foreclosed by controlling precedent. See Bordenkircher v. Hayes, 434 U.S. 357, 363

(1978) (“[I]n the „give-and-take‟ of plea bargaining, there is no [constitutionally




5
  Though we have focused on the third prong of the Rule 404(b) test because it is
emphasized in Badini‟s brief, we also conclude that the first, second, and fourth prongs
were satisfied.
6
  21 U.S.C. § 841 provides for a twenty-year mandatory minimum sentence for those who
have a prior felony drug conviction, and § 851 requires the Government to file an
information with the court stating the previous convictions to be relied upon.
                                             10
impermissible] element of punishment or retaliation so long as the accused is free to

accept or reject the prosecution‟s offer.”).7

       Badini next makes a somewhat perplexing argument that the Government‟s plea

deal offer involving a 180-month sentence (which was within the advisory Sentencing

Guidelines range) was an attempt to circumvent the Supreme Court‟s decision in United

States v. Booker, 543 U.S. 220 (2005). According to Badini, by offering him the 180-

month sentence, the Government was attempting to prevent the District Court from

applying a downward variance to his sentence. The full scope of Badini‟s argument is

unclear, but it appears to imply that use of Federal Rule of Criminal Procedure

11(c)(1)(C)8 is impermissible under Booker because stipulated sentences limit district

courts‟ sentencing discretion. Yet a district court must examine the Guidelines in order

to determine whether to accept a plea agreement that contains a stipulated sentence under

Rule 11(c)(1)(C). Freeman v. United States, 131 S. Ct. 2685, 2692 (2011). The Supreme

Court has explained this process and found no constitutional infirmity in it, even after

Booker. Id. If a district court examines a plea agreement and decides that the sentence is

improper, it may refuse to accept the agreement. Thus, its discretion is not improperly

limited when the parties enter into a plea deal with a stipulated sentence.




7
  Badini attempts to distinguish Bordenkircher because it did not involve a refusal to
reveal criminal activity of other individuals. Yet, once again, he fails to cite any law
supporting his position, simply stating that the Government‟s action was “unjust.” Reply
Br. 13.
8
  The Rule allows a plea agreement to specify “that a specific sentence or sentencing
range is the appropriate disposition of the case.”
                                                11
      Badini‟s arguments concerning the plea bargaining process and 21 U.S.C. § 851

are unsupported by case law.9 For that reason, we will affirm his sentence.

                                           III.

       Based on the foregoing, we will affirm Badini‟s conviction and sentence.




9
 Badini‟s opening brief also seems to argue that because his prior conviction was
eighteen years old, the mandatory minimum sentence was improper. He points to no
provision in the law that limits its scope to convictions of a certain recency.

                                           12
