                                               NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 ___________

               Nos. 11-1448 & 11-1864
                    ___________

          UNITED STATES OF AMERICA

                          v.

                LAMONT WILLIAMS,
             a/k/a MICHAEL MANNING

                  Lamont Williams,
                             Appellant at No. 11-1448

                VAUGHN NICHOLS,
                 Also known as “B”

                  Vaughn Nichols,
                            Appellant at No. 11-1864
             _______________________

     On Appeal from the United States District Court
         for the Eastern District of Pennsylvania
D.C. Criminal Nos. 08-cr-00704-009 and 08-cr-00704-006
              (Honorable Legrome D. Davis)
                    ______________

    Submitted Pursuant to Third Circuit LAR 34.1(a)
                 November 13, 2012

Before: SCIRICA, FISHER and JORDAN, Circuit Judges.

              (Filed: November 19, 2012)

                 _________________

             OPINION OF THE COURT
                _________________
SCIRICA, Circuit Judge.

       In this consolidated appeal following a jury trial, defendants challenge their

convictions relating to a West Philadelphia drug trafficking operation. Vaughn Nichols

was convicted of conspiracy to distribute five kilograms or more of cocaine (21 U.S.C. §

846) and possession with intent to distribute cocaine (21 U.S.C. § 841(a)(1)). Nichols

was sentenced to 240 months of imprisonment, ten years of supervised release, a $2,500

fine, and a $200 special assessment. Lamont Williams was convicted of conspiracy to

distribute five kilograms or more of cocaine (21 U.S.C. § 846) and possession of a

firearm by a convicted felon (18 U.S.C. § 922(g)(1)). Williams was sentenced to 240

months of imprisonment, ten years of supervised release, a $2,000 fine, and a $200

special assessment.

       Nichols and Williams challenge the sufficiency of the evidence underlying the

jury‟s verdict that (1) they engaged in a conspiracy to distribute cocaine, and (2) the

amount of cocaine they conspired to distribute equaled or exceeded five kilograms.

Williams also challenges the denial of his motion to sever the charge of felon in

possession of a firearm from the charge of conspiracy.

       We will affirm.

                                              I

       Maurice Hudson was the target of a large-scale drug trafficking investigation in

West Philadelphia that began in 2006. Hudson ran his drug-distribution operation out of

several properties he owned near Markoe and Ogden streets. During the investigation,


                                              2
this area was under extensive surveillance by law enforcement. Officers installed pole

cameras, wiretapped suspects‟ phones, and sent undercover agents to make controlled

drug purchases. The investigation culminated on November 20, 2008, when law

enforcement executed search warrants for thirty-four residences and vehicles. Williams‟

apartment was among those searched, and police recovered a handgun from the premises.

       Ultimately, Hudson and several other suspected members of the operation,

including Nichols and Williams, were charged under a Second Superseding Indictment

with conspiracy to distribute five kilograms or more of cocaine (21 U.S.C. § 846). All

defendants except Nichols and Williams entered guilty pleas.1 Pursuant to plea

agreements, Hudson and co-defendant Michael Greene testified as cooperating witnesses

at the trial of Williams and Nichols.

       Before trial, Williams made a motion to sever the felon-in-possession count and

suppress evidence of the firearm from the conspiracy charge. The court denied Williams‟

motion but bifurcated the trial so that evidence of Williams‟ prior convictions was not

introduced until after the jury considered the conspiracy charge.

       The five-day trial began on October 25, 2010. At trial, Hudson testified at length

about his drug distribution operation and his dealings with Williams and Nichols in 2007

and 2008. Greene, who was present for many of Hudson‟s transactions, also testified as

to defendants‟ drug-related transactions with Hudson. The government presented

telephone records, wiretap recordings, and testimony from surveilling officers. The jury


1
 Hudson pled guilty to conspiracy to distribute between fifteen and fifty kilograms of
cocaine.
                                             3
returned guilty verdicts on all counts.

                                             II2

       “To establish a conspiracy, the evidence must show that the alleged conspirators

shared a unity of purpose, an intent to achieve a common goal, and had an agreement to

work together to achieve that goal.” United States v. Robinson, 167 F.3d 824, 829 (3d

Cir. 1999). “The existence of a conspiracy may be inferred from evidence of related facts

and circumstances from which it appears, as a reasonable and logical inference, that the

activities of the participants in the criminal venture could not have been carried on except

as the result of a preconceived scheme or common understanding.” United States v.

Barrow, 363 F.2d 62, 64 (3d Cir. 1966). It is not necessary for the government to prove

that each defendant knew all the other participants or details of the conspiracy. United

States v. Theodoropoulos, 866 F.2d 587, 593 (3d Cir. 1989), overruled on other grounds

by United States v. Price, 76 F.3d 526, 528 (3d Cir. 1996).

       We may affirm a jury finding that separate drug sales constituted a single

conspiracy if there is “sufficient evidence from which a jury could have concluded that

each drug transaction was a step in achieving the conspiracy‟s common goal of

2
  We have jurisdiction under 28 U.S.C. § 1291. Our review of jury convictions on the
basis of insufficiency of the evidence “places a very heavy burden on the appellant.”
United States v. Coyle, 63 F.3d 1239, 1243 (3d Cir. 1995). We must affirm a conviction
as long as “there is substantial evidence that, when viewed in the light most favorable to
the government, would allow a rational trier of fact to convict.” Gov’t of Virgin Islands
v. Charles, 72 F.3d 401, 410 (3d Cir. 1995). We may not “re-weigh the evidence
presented at trial or reassess the credibility of the witnesses . . . .” United States v. Al
Hedaithy, 392 F.3d 580, 605 (3d Cir. 2004). We have plenary review over whether
counts were improperly joined. United States v. Gorecki, 813 F.2d 40, 41 (3d Cir. 1987).
We review the denial of a motion for severance for abuse of discretion. United States v.
Adams, 759 F.2d 1099, 1112 (3d Cir. 1985).
                                             4
distributing cocaine for profit.” Theodoropoulos, 866 F.2d at 593. But “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.” United States v. Gibbs, 190 F.3d 188, 197 (3d Cir. 1999).

                                              A

       Both defendants contend the evidence was insufficient to sustain their conspiracy

convictions. Nichols insists the government‟s evidence only proves that he and Hudson

had a buyer-seller relationship. Williams similarly argues that he and Hudson merely

performed a few isolated “favors” for one another with no further understanding or

agreement. We conclude there was substantial evidence that both Williams and Nichols

conspired with Hudson to help each other in their respective drug trafficking businesses,

with the ultimate goal of distributing cocaine for profit.

       To determine whether a defendant has joined a conspiracy, 3 we have looked to

many 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.”

Gibbs, 190 F.3d at 199. The use of pseudonyms and coded language can point to a

defendant‟s participation in a conspiracy. See United States v. McGlory, 968 F.2d 309,

323-25 (3d Cir. 1992).

       The evidence demonstrated a clear pattern of mutual assistance and trust between


3
 Here, like in Gibbs, 190 F.3d at 195, there is ample evidence a narcotics conspiracy
existed—the central inquiry is whether defendants joined it.
                                              5
Hudson and defendants. For instance, Hudson testified that although he and his cousin

Nichols maintained separate businesses, he helped Nichols on several occasions, meaning

that “[i]f he called me and needed some help, I would sometimes give him money, or if

he—if he wanted some drugs, I would give him drugs.” Suppl. App. Appellee vol. 1,

128:1-3. And Nichols, in turn, helped Hudson by finding a supplier that sold Hudson a

kilogram of cocaine.

       Hudson testified he had a similar relationship with his old friend Lamont

Williams, who sometimes did “favors” for him.4 If Hudson‟s regular suppliers were

unable to provide the amount of cocaine he needed, Hudson would ask Williams whether

he had cocaine or knew some other source. Williams performed at least two “favors” for

Hudson in 2007 and 2008, supplying him with a kilogram of cocaine on one occasion and

two kilograms on another occasion. And Hudson helped Williams by selling nine ounces

of cocaine to him when he needed it.

       There was also evidence that Hudson and defendants kept in close contact,

checked up on one another after leaving drug transactions, used nicknames, and spoke in

code to avoid detection by police. This evidence undermines defendants‟ assertions that

their relationships with Hudson consisted of a few discrete buyer-seller transactions or

isolated favors. Instead, it suggests Hudson and defendants had a mutual, ongoing

4
 Hudson describes these transactions as “favors” because he and Williams would not
make a profit from one another. But there is no requirement that a conspiracy prove
profitable to its conspirators. Furthermore, even though Hudson and Williams did not
make a profit in transactions with one another, the transactions were nonetheless
mutually advantageous because they allowed Hudson and Williams to continue to
distribute drugs to their customers when their regular suppliers could not meet their
demands.
                                             6
understanding they would help one another when needed. Based on this evidence, a

rational jury could find the relationship between Hudson and defendants was, at bottom, a

“tacit agreement” to distribute cocaine for profit.5 See United States v. Rawlins, 606 F.3d

73, 80 (3d Cir. 2010) (noting conspiracies “are ordinarily formed by tacit agreement”).

                                             B

       Nichols and Williams both contend the evidence does not support the jury‟s

findings they conspired to distribute five kilograms or more of cocaine. Nichols

presumably bases this argument on Hudson‟s testimony that “between three and four

kilos” passed between him and Nichols during his drug-distribution operation. App. vol.

1, 268:19; but see id. at 269:8 (calling this a “rough estimate”). Similarly, Williams

argues the government‟s evidence of “favors” between Hudson and Williams only totaled

three kilograms of cocaine.

       Because Nichols and Williams were convicted of conspiracy—the agreement to

distribute cocaine—the jury was not bound to only consider the cocaine that actually

passed between defendants and Hudson. Cf. United States v. Jimenez Recio, 537 U.S.

270, 274-75 (2003) (explaining that conspiracy is “„a distinct evil,‟ which „may exist and

be punished whether or not the substantive crime ensues.‟” (quoting Salinas v. United

States, 522 U.S. 52, 65 (1997))). Furthermore, the twenty-year mandatory statutory

5
  Additionally, we have found “sufficient evidence of a conspiracy” where a witness
testified the defendant gave him drugs on credit, with payment to be made after the drugs
were sold. United States v. Iglesias, 535 F.3d 150, 156 (3d Cir. 2008). Hudson testified
that he loaned money to Nichols to purchase drugs for both of them and that Williams
gave cocaine to Hudson on credit, collecting payment after Hudson sold it. Under
Iglesias, this testimony, standing alone, is sufficient to demonstrate defendants conspired
with Hudson.
                                             7
minimum6 is triggered by the amount of cocaine distributed by the conspiracy as a whole

and not the amount of cocaine attributable to defendants personally. See United States v.

Easter, 553 F.3d 519, 523 (7th Cir. 2009) (explaining “when it comes to the statutory

penalties, every coconspirator is liable for the . . . transactions that were reasonably

foreseeable acts in furtherance of the entire conspiracy”).

       There was ample evidence to support the jury‟s findings that each defendant

conspired with Hudson to distribute five kilograms or more of cocaine. Hudson testified

at the height of his drug trafficking operation, he was distributing between two and three

kilograms of cocaine per month. He pled guilty to distributing between fifteen and fifty

kilograms of cocaine. Circumstantial evidence suggested Nichols and Williams were

aware of the scope of Hudson‟s operation—Hudson kept in close touch with defendants,

purchased distribution-size quantities of cocaine from defendants, and did so only when

his regular suppliers fell through. Nichols also sought to borrow substantial sums of

money from Hudson. Accordingly, the jury could have rationally concluded defendants

agreed to distribute at least five kilograms of cocaine because they knew the scope of

Hudson‟s operation and formed ongoing, open-ended agreements to help him.

       Since the government‟s charges were supported by substantial evidence and a jury

could have rationally concluded defendants conspired to distribute five kilograms or

more of cocaine, the District Court properly imposed a mandatory twenty-year sentence

6
 Under 21 U.S.C. § 841(b)(1)(A), a defendant convicted of distribution or possession
with intent to distribute five kilograms or more of cocaine shall be sentenced to a
minimum of 10 years of imprisonment and a maximum of life imprisonment. This
mandatory statutory minimum doubled to twenty years for both Nichols and Williams
because of prior drug-related felony convictions. See 21 U.S.C. § 841(b)(1)(A).
                                              8
for both defendants. See 21 U.S.C. § 841(b)(1)(A); United States v. Reevey, 631 F.3d

110, 113 (3d Cir. 2010) (describing the statutory minimum drug trafficking penalty as

mandatory), cert. denied, 131 S. Ct. 2947 (2011).

                                             III

       Williams contends the District Court improperly joined the felon-in-possession

count with the conspiracy count. Williams also asserts he was unfairly prejudiced by the

failure to sever the two offenses.

       Under Rule 8(a), offenses may be joined if they “are of the same or similar

character, or are based on the same act or transaction, or are connected with or constitute

parts of a common scheme or plan.” Fed. R. Crim. P. 8(a). The counts here are

“sufficiently connected temporally or logically” to meet the requirements of Rule 8(a).

United States v. Gorecki, 813 F.2d 40, 42 (3d Cir. 1987). Like in Gorecki, “it is

reasonable to assume that the firearm could have been used as a vital part of a plan to

possess and distribute drugs, particularly since the firearm and the narcotics-related

evidence were found on the same premises, at the same time, as a result of the same legal

search.”7 Id.

       Williams has also failed to show joinder created a substantial risk of prejudice. In

United States v. Joshua, we approved the same bifurcated trial procedure followed here,

explaining that it ensures a “defendant‟s criminal past is not made known to the jury until

after they have reached a verdict with respect to the other charges. At the same time, this


7
 The firearm in Williams‟ apartment was discovered along with $7,620 in cash, five cell
phones, and a driver‟s license under Williams‟ pseudonym.
                                             9
procedure is considerably more efficient than conducting an entire new jury trial on the

weapon possession charge at a later date.” 976 F.2d 844, 848 (3d Cir. 1992), abrogated

on other grounds by Stinson v. United States, 508 U.S. 36 (1993). We rejected

defendant‟s contention that he was prejudiced by the procedure, finding “[t]he potential

for the type of prejudice . . . of which Joshua complains is the same potential for

prejudice that every criminal defendant faces when multiple counts are tried together.”

Id.

       Like Joshua, Williams cannot show he was prejudiced by the joinder. Rather, as

the District Court pointed out, evidence of the gun possession was relevant to the

conspiracy charge, see United States v. Picklesimer, 585 F.2d 1199, 1204 (3d Cir. 1978)

(“[W]e believe that where a defendant is charged with narcotics conspiracy, evidence that

weapons were found in his possession may be relevant and admissible. . . . [A] weapon

may be as much a tool of the crime as the van used to transport the narcotics.”), and

evidence of the conspiracy was relevant to the gun possession charge, see Gorecki, 813

F.2d at 42 (positing that a narcotics charge could be relevant as evidence of “motive,

preparation, or plan” at a trial for a weapon charge). In particular, since Williams leased

his apartment under a pseudonym, evidence of the conspiracy was necessary to link

Williams to the apartment in which the gun was found. Evidence of both offenses would

have been admissible at separate trials. Williams was not substantially prejudiced by

having the two counts tried together. Accordingly, the District Court did not abuse its

discretion by denying Williams‟ motion to sever the charge of felon in possession of a

firearm from the charge of conspiracy.

                                             10
                                          IV

      For the foregoing reasons, we will affirm the judgments of conviction and

sentence of Vaughn Nichols and Lamont Williams.




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