                                                             NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                                   No. 10-4190
                                  _____________

                          UNITED STATES OF AMERICA,


                                         v.

                              JUAN RIVERA-VELEZ,
                                   a/k/a "Junito",
                                 a/k/a "Two-Face"


                                 Juan Rivera-Velez,
                                                      Appellant
                                  _____________

                  On Appeal from the United States District Court
                           For the District of New Jersey
                                 (D.C. No. 06-445)
                    District Judge: Honorable Joseph E. Irenas
                                  _____________

                  Submitted Under Third Circuit L.A.R. 34.1(a),
                               January 13, 2012

     BEFORE: MCKEE, Chief Judge, and FUENTES, JORDAN, Circuit Judges

                           (Opinion Filed: March 19, 2012)
                                  _____________

                            OPINION OF THE COURT
                                _____________


FUENTES, Circuit Judge.


                                         1
       Juan Rivera-Velez was charged with conspiring to distribute more than five

kilograms of cocaine and more than fifty grams of crack cocaine (Count 1); murdering

Miguel Batista with a firearm on September 26, 1996, in furtherance of the drug

distribution conspiracy (Count 2); attempting to murder Rafael Colon-Rodriguez

(“Colon”) on April 5, 2003, in order to prevent Colon from providing information to law

enforcement officials about the Batista murder (Count 3); and using a firearm in

connection with the attempted murder of Colon (Count 4). Trial commenced on

September 29, 2009, and on November 19, 2009, the jury found Rivera-Velez guilty on

all four counts. The District Court imposed sentences of life imprisonment on Counts 1

and 2, 240 months imprisonment on Count 3, and 300 months on Count 4. The

sentencing judge also ordered that the life sentence on Count 2 and the 300 month

sentence on Count 4 be served consecutively to each other and to the sentences on the

other counts.

       Rivera-Velez now raises eight grounds for appeal. For the reasons expressed

below, we will affirm his conviction and sentence.1

                                              I.

       Because we write primarily for the benefit of the parties, we set forth only the

facts and history that are relevant to our conclusion.

       Rivera-Velez was an “enforcer” for the boss of a large drug trafficking

organization, Raymond Morales. Rivera-Velez was first hired by Morales in 1993 to

1
 The District Court had jurisdiction over this action pursuant to 18 U.S.C. § 3231. We
have appellate jurisdiction pursuant to 28 U.S.C. § 1291.

                                              2
provide protection while Morales was selling cocaine. He was described as Morales’s

“muscle” and it was noted that he typically carried a gun and “had no problem shooting

. . . anybody.” Appellee’s Br. 10. Except when he was incarcerated from 1996 through

2001, Rivera-Velez worked continuously for Morales until 2003.

       Rivera-Velez perpetrated numerous violent acts while in Morales’ employ. For

example, in September 1996, at Morales’ direction, he shot a drug-dealing competitor,

Miguel Batista, in the back of the head. Rivera-Velez also shot Rafael Colon, an

individual who had knowledge of his and Morales’ involvement in the Batista murder.

Colon survived and identified Rivera-Velez as his assailant at trial.

       Rivera-Velez raises myriad arguments on appeal, including that the District Court

erred in: admitting his statements to law enforcement, denying his “Rule of

Completeness” application, admitting improper propensity evidence, not directing the

Government to make additional disclosures pursuant to its Brady obligations, dismissing

a prospective juror for cause, and sentencing him to a longer term of imprisonment than

the Government initially requested. Because these claims are plainly not meritorious, we

will affirm.

                                                 II.

       Rivera-Velez also argues that the proofs adduced at trial varied from those alleged

in the indictment, because instead of proving one single conspiracy, the evidence showed

only multiple, smaller conspiracies. He believes that these multiple, small conspiracies

were improperly joined into one trial and that the statute of limitations had run on some

of his charges.

                                             3
       “A defendant alleging a variance between a single conspiracy charged in an

indictment and the proof presented at trial must demonstrate, first, that there was such a

variance and, second, that the variance prejudiced one of his substantial rights.” United

States v. Quintero, 38 F.3d 1317, 1337 (3d Cir. 1994). We have said, however, that “[i]f,

viewing the evidence in the light most favorable to the government . . . a rational trier of

fact could have concluded from the proof adduced at trial the existence of the single

conspiracy alleged in the indictment, there was no variance.” United States v. Greenidge,

495 F.3d 85, 93 (3d Cir. 2007). This Court uses a three-step test to distinguish between

single and multiple conspiracies.

       First, we examine whether there was a common goal among the
       conspirators. Second, we look at the nature of the scheme to determine
       whether the agreement contemplated bringing to pass a continuous result
       that will not continue without the continuous cooperation of the
       conspirators. Third, we examine the extent to which the participants overlap
       in the various dealings.

United States v. Kelly, 892 F.2d 255, 259 (3d Cir. 1989) (internal quotation marks and

citations omitted).

       In the instant case, a rational trier of fact could have concluded that Rivera-Velez

conspired with Morales and others to continuously distribute drugs during the ten year

period described in the indictment. As the District Court noted, although Rivera-Velez

was incarcerated from 1996 to 2001 and “didn’t do anything during that period of time,

. . . there’s no issue that he withdrew from any conspiracy . . . . [A]s soon as he got out,

he was doing what he was doing for the few years before he was sent to jail.” Appellee’s

Br. 41 n.18. Indeed, as the District Court noted, “for members of . . . a single drug


                                             4
conspiracy, to go to jail, stay in jail for a while, come back out and continue doing what

they’re doing [is] probably more the norm than . . . the exception. Id. at 41 n.17.

       Thus, for the reasons expressed above, we will affirm Rivera-Velez’s conviction

and sentence.




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