                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                ______________

                                       No. 14-3001
                                     ______________

                            UNITED STATES OF AMERICA

                                             v.

                                   JAMES STEPHENS,
                                              Appellant
                                     ______________

                       APPEAL FROM THE DISTRICT COURT
                               OF THE VIRGIN ISLANDS
                         (D.C. Action No. 3-11-cr-00016-006)
                       District Judge: Honorable Curtis V. Gomez
                                    ______________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 December 12, 2014
                                  ______________

            Before: CHAGARES, JORDAN, and SHWARTZ, Circuit Judges.

                                (Filed: December 17, 2014)
                                     ______________

                                        OPINION
                                     ______________

SHWARTZ, Circuit Judge.

       James Stephens was convicted of conspiring to possess with intent to distribute a

controlled substance. He appeals, arguing that there was insufficient evidence to support

       
        This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
his conviction. For the reasons that follow, we will affirm.

                                             I

       The conspiracy in this case involved a drug distribution scheme in which Jerome

Potter sold cocaine to Herbert Ferguson, who then sold the cocaine in powder and base

(or “crack”) form to Stephens and others. At trial, Ferguson testified for the Government,

explaining that Stephens “started to work, selling cocaine and crack for [Ferguson] on St.

John” three months before the conspiracy was foiled. App. 500. Ferguson explained that

he sold Stephens half-ounce quantities of cocaine and crack two to three times per week.

       During wiretapped phone calls, Ferguson and Stephens discussed Stephens selling

drugs “for” Ferguson. App. 425. On the calls, Ferguson and Stephens made references

to “fish,” “Z,” “candy,” “plate,” “rocks,” and “biscuits,” which Ferguson later explained

were code words for the drugs. App. 590-91, 600, 606. The calls also referred to

proceeds from the drug sales. For example, one call involved a discussion about how

Stephens “had a thousand made already” but still owed Ferguson $600. App. 601.

       Other calls pertained to the status of the drug operation. For example, in one call,

Stephens told Ferguson that Larry’s Landing, the place where Stephens and Ferguson

sold drugs, was closed, so sales were “dead.” App. 596, 603-04. In another, Stephens

told Ferguson’s wife that Ferguson should not “waste time” traveling to Larry’s Landing

because no one was buying. App. 604. During another call, Stephens informed Ferguson

that individuals they thought were “working for the cops” were “coming inside Larry’s

Landing” and warned Ferguson that “they can’t come in here.” App. 603-04. Ferguson
                                             2
testified that he and Stephens did not “allow [the suspected informants] to come in [to

Larry’s Landing] to sell anything.” App. 604.

       The jury convicted Stephens of conspiring to possess with intent to distribute a

controlled substance, in violation of 21 U.S.C. § 846. The jury further found that the

conspiracy involved twenty-eight grams or more of cocaine base.1 Stephens was

sentenced to concurrent terms of 180 and forty-eight months’ imprisonment and five

years’ supervised release. He now appeals.

                                             II2

       To prove a conspiracy of the sort alleged here, the government must show “(1) a

shared unity of purpose; (2) an intent to achieve a common illegal goal; and (3) an

agreement to work toward that goal.” United States v. Caraballo-Rodriguez, 726 F.3d

418, 425 (3d Cir. 2013) (en banc). It must “proffer sufficient evidence from which a jury

could have concluded that each drug transaction in which [the defendant] was involved

was a step in achieving the conspiracy’s common goal of distributing [drugs] for profit.”




       1
          Stephens was also convicted of possession with intent to distribute cocaine base
in violation of 21 U.S.C. § 841(b)(1)(B)(iii) and use of a communication facility to
facilitate a drug crime in violation of 21 U.S.C. § 843(b), but he does not challenge these
convictions.
        2
          The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review of the grant or
denial of a judgment of acquittal, reviewing the record “in the light most favorable to the
prosecution to determine whether any rational trier of fact could have found proof of guilt
beyond a reasonable doubt.” United States v. Caraballo-Rodriguez, 726 F.3d 418, 430
(3d Cir. 2013) (en banc) (internal citations, quotation marks, and alterations omitted).
                                             3
United States v. Gibbs, 190 F.3d 188, 197 (3d Cir. 1999) (internal quotation marks and

citations omitted).

       A “simple buyer-seller relationship, without any prior or contemporaneous

understanding beyond the sales agreement itself, is insufficient to establish that the buyer

was a member of the seller’s conspiracy.” Id. However, “an occasional supplier,” and

“an occasional buyer for redistribution[] can be shown to be a member of the conspiracy

by evidence . . . of knowledge that she or he was part of a larger operation.” Id. at 198

(quotation marks and internal citations omitted). As we said in Gibbs,

       where the defendant’s only involvement in the conspiracy appears to be
       drug purchases, courts have looked to the surrounding circumstances to
       determine whether [he] is a mere buyer who had such limited dealings with
       the conspiracy that he cannot be held to be a conspirator, or whether he has
       knowledge of the conspiracy to the extent that his drug purchases are
       circumstantial evidence of his intent to join that conspiracy.

Id. at 199. In doing so, we consider a non-exhaustive list of factors, including “the length

of affiliation between the defendant and the conspiracy; whether there is an established

method of payment; the extent to which transactions are standardized; and whether there

is a demonstrated level of mutual trust.” Id. Mutual trust may be shown by transactions

involving large amounts of drugs and the extension of credit. Id. at 199-200. The

presence of “one or more” factors furthers the inference “that [the] defendant has full

knowledge of, if not a stake in, a conspiracy.” Id. In other words, “when a defendant

drug buyer has repeated, familiar dealings with members of a conspiracy, that buyer

probably comprehends fully the nature of the group with whom he is dealing, is more

                                             4
likely to depend heavily on the conspiracy as the sole source of his drugs, and is more

likely to perform drug-related acts for conspiracy members in an effort to maintain his

connection to them.” Id. at 199.

       Application of the Gibbs factors demonstrates that Stephens was a member of the

conspiracy. First, Ferguson testified that Stephens had been selling drugs “for” Ferguson

for three months, App. 425, and the recorded calls between Ferguson and Stephens reveal

coded conversations detailing numerous transactions in which drugs flowed from

Ferguson to Stephens and then from Stephens to his customers.3 Thus, this is not a case

“in which the evidence showed only a single or a very limited number of sales for

personal use.” United States v. Innamorati, 996 F.2d 456, 484 (1st Cir. 1993). Second,

evidence of trust was apparent from Stephens’s purchase of drugs on credit. Third, the

evidence showed that Stephens and Ferguson had a “mutual stake” in the transactions, as

demonstrated by Stephens’s acting as a lookout for Ferguson. Gibbs, 190 F.3d at 199-

200. Specifically, Stephens told Ferguson not to “waste time” coming to Larry’s Landing

       3
         Ferguson’s recorded statements were properly admitted as coconspirator
statements under Fed. R. Evid. 801(d)(2)(E), as there was sufficient evidence to
corroborate the existence of a conspiracy beyond the recorded statements themselves,
United States v. Turner, 718 F.3d 226, 231 (3d Cir. 2013), including Ferguson’s
testimony that Stephens sold drugs “for” him at Larry’s Landing and made purchases of
cocaine powder and cocaine base two or three times per week, App. 425. See United
States v. Mitchell, 596 F.3d 18, 23 (1st Cir. 2010) (relying on cooperating witness’s in-
court testimony to corroborate that witness’s out-of-court statements to establish
existence of a conspiracy under 801(d)(2)(E)); United States v. Console, 13 F.3d 641,
659-60 (3d Cir. 1993) (relying on patient’s testimony to corroborate doctor’s out-of-court
statements to establish existence of a conspiracy under 801(d)(2)(E)). Ferguson’s
statements were also corroborated by admissions Stephens made during the recorded
conversations.
                                            5
when drugs sales were slow and warned him when suspected informants attempted to sell

drugs on their turf. App. 604. Moreover, Stephens acted to further the conspiracy by

preventing the suspected informants from entering Larry’s Landing to sell drugs.

Drawing all inferences in favor of the Government, this evidence shows that Stephens

had a stake in the cocaine distribution scheme beyond that of a mere buyer and was

therefore a member of the conspiracy.

                                           III

      For the foregoing reasons, we will affirm.




                                           6
