                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4398


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

SETH LINKOUS THOMAS,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.     James C. Turk, Senior
District Judge. (7:10-cr-00016-jct-1)


Argued:   March 21, 2012                  Decided:    July 25, 2012


Before TRAXLER, Chief Judge, and KING and WYNN, Circuit Judges.


Affirmed in part, reversed in part, vacated          in   part,   and
remanded by unpublished per curiam opinion.


ARGUED: Paul Graham Beers, GLENN, FELDMANN, DARBY & GOODLATTE,
Roanoke, Virginia, for Appellant.     Thomas Ernest Booth, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
ON BRIEF: Timothy J. Heaphy, United States Attorney, Donald R.
Wolthuis, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Roanoke, Virginia; Lanny A. Breuer, Assistant
Attorney General, Greg D. Andres, Acting Deputy Assistant
Attorney   General,   UNITED   STATES   DEPARTMENT   OF  JUSTICE,
Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     Seth     Thomas     appeals     his        convictions    and    sentence     for

multiple drug-related counts, raising several different issues.

We affirm one conviction, reverse two others, vacate Thomas’s

sentence, and remand for resentencing.



                                           I.

     In     2006   and     2007,     the        Smokey   Ridge       Apartments     in

Christiansburg,        Virginia,     were        a   hotbed    of     illegal     drug

distribution.      Thomas did not live there, but he worked close by

and spent a lot of time there feeding his drug habit.

     One of the main suppliers in the complex during that period

was Aaron Thompson.        Thompson sold painkillers and pills almost

daily.     He sold fentanyl patches less frequently, about once per

month. 1     Thomas    also   sold    painkillers        and   pills    to   various

individuals in the apartment complex.

     Thompson and Jennie Grissom were the primary drug suppliers

to Jimmy Clark, Clark’s girlfriend Whitney Branscom, and Clark’s

     1
       Fentanyl is a very powerful pain-relieving drug, about 50
to 100 times stronger than morphine, often prescribed to cancer
patients.    Fentanyl comes in various forms, including gel
patches that are placed on the skin so that the medicine can
enter the bloodstream gradually over three days.        Addicts,
however, sometimes remove the gel from the patch and eat it,
causing three days’ worth of the powerful medicine to enter the
body at once. The result can be respiratory depression, central
nervous system depression, and death.



                                           3
neighbor   Kenneth        Ponder.     Clark’s    relationship      with    Thomas,

however,   was     more    social.     Thomas    would    visit    Clark   almost

daily, often sharing drugs with him.             Thomas also sold drugs to

Clark a few times.

     On the morning of November 28, 2007, Thomas asked Joseph

Haley, a friend and co-worker, for a ride to the apartments the

next morning because Thomas wanted to trade some percocet and

methadone pills for fentanyl patches.              When Thomas arrived, he

went to Ponder’s apartment, which was a place where transactions

were regularly made.            Thompson had acquired a batch of fentanyl

patches and brought them to the apartment.                  Thompson sold one

patch to Ponder and multiple patches to Thomas.

     Leaving       Ponder’s     apartment   together,    Thomas    and    Thompson

walked several doors down toward Clark, who was sitting outside

his apartment. Thompson showed Clark 3-4 fentanyl patches, and

Thomas also displayed at least one patch.                Clark, however, told

the men that he did not have any money.                  Thompson nevertheless

decided to sell Clark a patch on credit because Thompson knew

Clark’s girlfriend had a job and could pay him later.

     Clark     mixed      the    contents   of   the     patch    with    alcohol,

injected     the    mixture      intravenously    through    a    syringe,     and

promptly went into respiratory distress.                  Thomas called 9-1-1

and an ambulance came and transported Clark to the hospital,

where he was treated for a fentanyl overdose.

                                        4
       Shortly after the ambulance arrived, Thomas called Haley to

ask for another ride, this time from Ponder’s apartment to the

home    of    Barry     Duncan.         Thomas    told   Haley     that     Clark    had

overdosed,      and     when   Haley     picked    up    Thomas,     Thomas    started

trying to hide his patches in Haley’s car.                        Haley refused to

take them, however.            Haley dropped Thomas off at Duncan’s house

in the late afternoon that same day.

       Duncan, his fiancée Traci McDougal, and Amber Dalton were

at Duncan’s residence when Thomas arrived.                        They had already

heard about Clark’s fentanyl overdose.                   Thomas showed them his

remaining patches and told them he needed to get rid of them.

Although Duncan had no money, Thomas sold him one for $30 on

credit.       McDougal then saw Thomas and Duncan enter the bathroom,

and she heard Thomas tell Duncan to lift his shirt so Thomas

could stick the patch on Duncan’s back.                   According to McDougal,

Thomas told Duncan he could cut the patch and eat the gel if the

patch did not stick.           McDougal, Dalton, and Thomas then drove to

Dalton’s house while Duncan went with his father to a Lowe’s and

later to his parents’ house to have dinner.

       When    McDougal    and    Thomas    arrived      to   pick   up    Duncan    and

bring him back to Dalton’s house, Duncan was having difficulty

walking and talking.           Duncan revealed that he had eaten some of

the    gel    because    the    patch    would    not    stick.      Then,    back    at

Dalton’s residence, Duncan could not stay awake.                          McDougal was

                                            5
concerned and started to call 9-1-1, but Thomas grabbed her cell

phone and told her there was no need to call—that Duncan would

be fine.        Eventually, McDougal put Duncan to bed.                    During the

night,    Duncan     died     of    a    fentanyl      overdose.        When    McDougal

discovered his condition the next morning, Dalton called 9-1-1.

While    EMS    personnel        attempted     to   revive     Duncan,    Thomas       told

Dalton not to say anything.                Thomas also asked McDougal for the

money Duncan owed him for the patch.

     A federal grand jury for the Western District of Virginia

subsequently returned an indictment charging Thomas with four

counts:        conspiring with Thompson (from an unknown time until

November 29, 2007) to distribute fentanyl, resulting in death or

serious bodily injury (“Count One”); distributing or aiding and

abetting    the    distribution         of    fentanyl    on    November       28,    2007,

which     resulted       in      serious      bodily     injury     (“Count          Two”);

distributing or aiding and abetting the distribution of fentanyl

on November 28, 2007, resulting in death (“Count Three”); and

distributing morphine on March 5, 2010 (“Count Four”).                               See 21

U.S.C.A.    §§    846,    841(a)(1),         841(b)(1)(C)      (West    1999    &     Supp.

2012); 18 U.S.C.A. § 2 (West 2000).                       Thomas pled guilty to

Count 4 and proceeded to trial on the remaining counts.

     At    the    close     of    the   government’s      case     in   chief,       Thomas

moved unsuccessfully for judgment of acquittal with regard to

each of the three counts.               See Fed. R. Crim. P. 29.           Thomas also

                                              6
renewed his motion when the government put on rebuttal evidence.

The jury eventually returned a verdict of guilty on each count.

       In   calculating       his     advisory      sentencing           range    under    the

Guidelines, the district court grouped the three offenses, see

U.S.     Sentencing      Guidelines        Manual         § 3D1.2(d)            (2010),    and

employed a base offense level of 38.                     Over a defense objection,

the    court    added    a    two-point       enhancement          for     obstruction      of

justice.       See U.S.S.G. § 3C1.1.              With a total offense level of

40 and a criminal history category of III, Thomas’s advisory

guidelines range was 360 months to life.                        Ultimately, the court

sentenced      Thomas    to    300    months,      stating         that    it     would    have

sentenced      Thomas    to    240    months       but    for      the     obstruction-of-

justice enhancement.



                                           II.

       Thomas    first       argues    that       the    district         court    erred    in

denying his motion for a judgment of acquittal on Count One.                                We

agree.

       We review de novo the denial of a motion for judgment of

acquittal.       See United States v. United Med. & Surgical Supply

Corp., 989 F.2d 1390, 1401-02 (4th Cir. 1993).                            When addressing

a   sufficiency-of-the-evidence            challenge,           “[w]e      must    view    the

evidence    in   the     light      most   favorable          to   the     government      and

inquire     whether     any    rational       trier      of     fact      could    find    the

                                              7
essential      elements        of   the   crime      beyond      a    reasonable      doubt.”

United States v. Wilson, 118 F.3d 228, 234 (4th Cir. 1997).

       In order to prove a conspiracy to distribute narcotics, the

government must establish that “(1) an agreement to possess with

intent to distribute [narcotics] existed between two or more

persons; (2) [the defendant] knew of the conspiracy; and (3)

[the defendant] knowingly and voluntarily became part of the

conspiracy.”          United States v. Reid, 523 F.3d 310, 317 (4th Cir.

2008).     The government may prove a conspiracy by circumstantial

evidence,        including          evidence         of     a        “tacit     or     mutual

understanding” between the defendant and his accomplice.                               United

States v. Ellis, 121 F.3d 908, 922 (4th Cir. 1997) (internal

quotation       marks     omitted).          Evidence       showing       a   buyer-seller

relationship is not sufficient by itself to establish a drug-

distribution conspiracy.              See United States v. Mills, 995 F.2d

480,     485    (4th         Cir.   1993).           However,         “evidence       of   any

understanding reached as part of the buy-sell transaction that

either party will engage in or assist in further distribution is

sufficient to prove . . . a conspiracy.”                               United States v.

Edmonds,       2012     WL    1592978,     at       *5    (4th   Cir.     May    8,    2012).

Additionally, we have held that evidence of a continuing buyer-

seller relationship coupled with evidence of large quantities of

drugs, or “continuing relationships and repeated transactions”



                                                8
can create a reasonable inference of an agreement.                   Reid, 523

F.3d at 317.

     We agree with Thomas that the evidence in this case shows

only a buyer-seller relationship between Thomas and Thompson.

The government showed only that Thomas made one small purchase

of fentanyl patches from Thompson.            It offered no evidence of an

ongoing    relationship     between    the    two.     Besides   the    single

purchase,    the    only    evidence       linking    Thomas   and     Thompson

concerned their proximity to one another during the one day when

the sales at issue in this case were made:                 After Thomas and

Ponder obtained their patches from Thompson, both Thomas and

Thompson walked straight toward Clark and offered to sell him

fentanyl patches.

     The government contends that the evidence that Thomas may

have bartered with Thompson for fentanyl with Thomas’s own pills

as opposed to simply paying cash is evidence of a conspiratorial

relationship.      However, we do not see how this fact is evidence

of a conspiracy.      See United States v. Kincannon, 567 F.3d 893,

897 (7th Cir. 2009) (“An agreement to exchange drugs for money

(or something else of value) – the crux of the buyer-seller

transaction – is insufficient to prove a conspiracy.” (emphasis

added)).

     The    government     also   maintains    that   Thomas’s   attempts    to

find fentanyl buyers in Smokey Ridge and the fact that “Thomas

                                       9
and Thompson jointly approached Clark and offered patches for

sale” is evidence of a conspiracy.                            Appellee’s brief at 14.

However, there        was     no    basis      for     a    reasonable      inference      that

Thomas’s attempts to identify people interested in purchasing

patches were for any purpose other than to sell the patches that

Thomas, himself, had purchased.                       That Thomas and Thompson may

have shopped their respective wares to Clark at the same time

does    not    give   rise    to     a    reasonable          inference     that    they    had

reached any agreement, tacit or otherwise.                            The district court

therefore erred in denying Thomas’s motion for a judgment of

acquittal on the conspiracy count.



                                               III.

       Thomas    next    maintains         that       the    district     court     erred    in

denying his motion for a judgment of acquittal on Count Two, in

which    the    government         sought      to     prove    that    Thomas      aided    and

abetted Thompson’s distribution of a fentanyl patch to Clark.

We agree.

       “To prove the crime of aiding and abetting the government

must show that the defendant knowingly associated himself with

and participated in the criminal venture.”                              United States v.

Winstead,      708    F.2d    925,       927    (4th        Cir.   1983).        Showing    the

defendant’s       mere       presence          at     the     scene    of    a     crime     is

insufficient.         See United States v. Spoone, 741 F.2d 680, 686

                                                10
(4th    Cir.     1984).         Rather,       the    government       must    “show       some

affirmative       participation           which      at      least     encourages         the

principal offender to commit the offense.”                            United States v.

Kelly, 552 F.3d 824, 831 (D.C. Cir. 2009) (internal quotation

marks omitted).

       The   government      maintains        that    Thomas       assisted      Thompson’s

distribution of fentanyl to Clark by purchasing fentanyl from

Thompson, offering to sell to Branscom, and approaching Clark

jointly with Thompson.              As we have explained with regard to

Count   One,     however,       there    is    no    basis    in     the   record     for    a

reasonable inference that Thomas’s actions were for any purpose

other than to facilitate his own sale of his own patches.                                 Nor

does    it     even    appear    that     Thomas’s         actions     regarding      Clark

assisted Thompson in any way in making the sale.



                                              IV.

       Thomas next maintains that the district court abused its

discretion       in    refusing     his        requested      aiding       and     abetting

instruction on Count Three, which pertained to the sale of a

fentanyl patch to Duncan.           We disagree.

       The   defense      theory   at     trial      was   that     Duncan       bought   the

patch that killed him from Thompson at Smokey Ridge rather than

from    Thomas    at    Duncan’s        house.        This    theory       was    based     on

testimony      from    Amber     Dalton    that      Thomas    and    Duncan       left    the

                                              11
house    for    15    minutes   before    returning      and    going    into       the

bathroom together to stick the patch on Duncan’s back.                       Based on

this theory, the defense argued that Thompson’s distribution of

the patch to Duncan would have completed the crime and that one

cannot aid and abet an already-completed crime.                       Thus, Thomas

requested      that   the   court   instruct    the    jury    that   “[a]     person

cannot be guilty of aiding or abetting a completed crime.”                         J.A.

563.     The district court did not include this specific language

in its charge.        However, the court instructed the jury:

             In order to be found guilty of aiding and
        abetting the . . . crimes charged in Counts Two and
        Three . . . , the government must prove beyond a
        reasonable doubt that the defendant:

             One, knew that the crimes charged                 were     to    be
        committed or were being committed;

             Two, knowingly did some act for the purpose of
        aiding the commission of that crime;

             And, three, acted with the intention of causing
        the crimes charged to be committed.

J.A. 472.

        Because the court’s instruction explained that in order to

convict, the jury would need to find that Thomas “knew that the

crimes charged were to be committed or were being committed,”

the charge did not permit the jury to find that Thomas aided and

abetted    after      the   completion   of    the    crime.     Thus,       Thomas’s

request was effectively covered by the court’s instructions.




                                         12
                                              V.

       Thomas next contends that the district court abused its

discretion by denying his motion to exclude evidence that he

distributed      drugs       other    than    fentanyl       and    “ripped       off”   drug

purchasers.

       Thomas moved unsuccessfully under Federal Rule of Evidence

404(b) to exclude any evidence that he had distributed drugs

other than fentanyl, such as morphine.                           However, the district

court overruled Thomas’s objections and allowed the admission of

such   evidence.            For    example,      co-worker       Haley       testified   that

Thomas    supplied           him     with     pain        pills     in        exchange     for

transportation from time to time, and Steven West, a neighbor

who    helped    Clark       after    he    overdosed      on     the       fentanyl   patch,

testified that Thomas sold him pain drugs 10-15 times in the six

months prior to the overdose.                    Thomas also moved unsuccessfully

to exclude evidence that he was a dishonest drug dealer.                                 West

testified       that    he    stopped       buying    drugs       from      Thomas     because

Thomas “ripped [him and others] off on several occasions.”                                J.A.

118.

       Even assuming arguendo that such evidence was erroneously

admitted, its admission was harmless as to Count Three.                                   See

United    States       v.    Forrest,      429     F.3d    73,    81     (4th   Cir.     2005)

(explaining       that       the     improper        admission         of     evidence     “is

harmless, if viewing the record as a whole, it is clear beyond a

                                              13
reasonable doubt that the jury would have returned a verdict of

guilty     absent    the    [improperly         admitted    evidence]”          (internal

quotation    marks       omitted)).        McDougal      testified       that    she    saw

Thomas agree to give Duncan the fentanyl patch on credit; she

then saw the two proceed into the bathroom; and she heard Thomas

in   the   bathroom      explaining       to   Duncan    about     the    patch    as   he

placed it on Duncan’s back.                Ponder also testified that Thomas

admitted to him that Thomas gave the patch to Duncan.

      Unlike   McDougal,         Dalton    did     not   testify    that    she     heard

Thomas     agree    to    sell    Duncan       a   patch,   and,     during       closing

arguments, defense counsel made much of the fact that Dalton

testified that Thomas and Duncan left the house for 15 minutes

before returning and going into the bathroom together.                            Counsel

urged the jury to credit Dalton’s testimony and infer that in

that 15 minutes, Thomas drove with Duncan to Smokey Ridge, less

than a mile away, so that Duncan could purchase a patch from

Thompson.      This theory of course begged the question of why

Thomas would not have simply sold Duncan one of the patches he

had shown to McDougal, Dalton, and Duncan.                       The defense argued

that those patches were for Thomas’s own use and that he would

not have wanted to part with them.                 That theory, however, was at

odds with another part of Dalton’s testimony in which she stated

that Thomas had been nervous because of Clark’s overdose and

that he had displayed his patches and said that he “needed to

                                           14
get rid of them.” 2            J.A. 222.             In the absence of any viable

defense theory regarding Count Three, we conclude that Thomas

was   not   prejudiced         by    any       error    in     the     admission    of    the

complained-of evidence.



                                               VI.

      Thomas finally argues that the district court erroneously

enhanced his sentencing guidelines offense level for attempted

obstruction       of    justice.         In     light    of    our     holding     that   the

district court erred in failing to grant Thomas’s motion for a

judgment of acquittal on Counts One and Two, we vacate Thomas’s

sentence and remand for resentencing.                          Nevertheless, for the

sake of judicial economy, we will address the obstruction-of-

justice issue.

      We review a district court’s application of an obstruction-

of-justice enhancement for clear error.                         See United States v.

Blauvelt, 638 F.3d 281, 293 (4th Cir. 2011).                            We conclude that

the   district         court   did       not        clearly    err     in   applying      the

enhancement.

      Evidence     presented        at     sentencing         showed    that    Thomas    was

jailed    prior    to    trial      with       an    inmate    named     Sean    Robertson;

      2
       Indeed, Dalton testified that she assumed that Thomas and
Duncan were making some sort of drug deal when they went into
the bathroom together.



                                               15
Robertson learned that his girlfriend Shameke Moore was on the

jury panel as a potential juror in Thomas’s case and revealed

this    information         to   Thomas;    and    Thomas    then    suggested       that

Robertson contact Moore and gave him suggestions to convince

Moore to adopt Thomas’s view of the case.

       Robertson later called Moore, summarized the case against

Thomas, and explained why Moore should vote not guilty.                           He even

suggested that there might be some money in it for Moore.                           Moore

told Robertson that she was “onboard” and would vote in Thomas’s

favor.         J.A.    634.       Thomas     subsequently         followed    up     with

Robertson      to     see    whether    Moore      would    vote    to     acquit    him.

Robertson told him that Moore had said that she would.

       During jury selection, Moore did not reveal to the court

that   she     had    discussed       the   case   before    or     that    she     had   a

personal interest in it even when specifically asked whether she

had read or talked to anyone about the case.                      Moore ended up not

being selected to serve on Thomas’s jury, however.

       Under     United      States    Sentencing     Guidelines         § 3C1.1,     the

court must enhance the defendant’s offense level by two if it

finds that the defendant “willfully obstructed or impeded, or

attempted to obstruct or impede, the administration of justice

with respect to the investigation, prosecution, or sentencing of

the    instant       offense     of   conviction.”         Application       Note    4(A)

specifically states that “unlawfully influencing a . . . juror,

                                            16
directly or indirectly, or attempting to do so” is conduct that

qualifies for an obstruction enhancement.               U.S.S.G. § 3C1.1 cmt.

n.4(A).

     Thomas argues that since any attempt by him to influence

Moore was oral, rather than written, it was not unlawful because

it was not prohibited by 18 U.S.C.A. § 1504 (West 2000).                     The

government       responds   correctly,       however,   that    regardless   of

whether it was unlawful under § 1504, it clearly was unlawful

under     18   U.S.C.A.     § 1503(a)    (West    2000),    which   proscribes

“corruptly . . . endeavor[ing] to influence . . . any . . .

petit juror . . . in the discharge of his duty.”

     Thomas suggests that the district court clearly erred in

finding that any attempt by him to influence Moore was corrupt.

Certainly, however, the evidence supported the conclusion that

Thomas attempted to use Robertson to persuade Moore to vote for

Thomas’s acquittal.         That Thomas’s plan included the fact that

Moore    would    conceal    Robertson’s      overtures    is   simple   common

sense.     Without such concealment, after all, Moore clearly could

never be seated on the jury.             The district court was thus on

firm ground in applying the enhancement.




                                        17
                                    VII.

     In   sum,   for   the   foregoing     reasons,   we    reverse    Thomas’s

convictions   on   Counts    One   and   Two,   affirm     his   conviction   on

Count Three, vacate his sentence, and remand for resentencing.



                                                            AFFIRMED   IN PART,
                                                            REVERSED   IN PART,
                                                             VACATED   IN PART,
                                                                 AND   REMANDED




                                     18
