                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ____________

                                        No. 11-1536
                                       ____________

                            UNITED STATES OF AMERICA

                                             v.

                                    KELVIN GANDY,
                                                Appellant
                                      ___________

                     On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                        (D.C. Criminal No. 2:08-CR-00186-004)
                      District Judge: Honorable Legrome D. Davis
                                      ___________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                 September 27, 2012

      Before:   McKEE, Chief Judge, JORDAN AND VANASKIE, Circuit Judges

                                 (Filed: January 14, 2013)
                                       ___________

                                        OPINION
                                       ___________

VANASKIE, Circuit Judge.

       Kelvin Gandy was convicted by a jury of one count of conspiracy to distribute five

kilograms or more of cocaine, in violation of 21 U.S.C. § 846. Gandy appeals, arguing

that the evidence was insufficient to support the jury’s finding that he participated in a

single cocaine distribution conspiracy as charged in the indictment. Specifically, Gandy
argues that the evidence proved multiple conspiracies, rather than the single conspiracy

charged, and also that he was merely a buyer, not a participant, in the conspiracy. We

reject both arguments and will affirm the District Court’s judgment.

                                             I.

       We write primarily for the parties, who are familiar with the facts and procedural

history of this case. Accordingly, we set forth only those facts necessary to our analysis.

       Following a lengthy under-cover investigation by the Pennsylvania State Police

involving electronic and physical surveillance, informants, and execution of search

warrants, Gandy and co-conspirators Burnie Majeed, Troy Cauthorn, and Jamille

Barksdale were indicted in a seven-count indictment charging, inter alia, that the

defendants conspired to distribute five or more kilograms of cocaine, in violation of 21

U.S.C. §§ 841(a), 841(b)(1)(A), and 21 U.S.C. § 846. Majeed, Cauthorn, and Barksdale

entered guilty pleas; Gandy proceeded to trial. Majeed and Cauthorn testified for the

Government at Gandy’s trial.

       Majeed and Cauthorn were the leaders of, and partners in, a drug-trafficking

operation, the purpose of which was to distribute wholesale amounts of cocaine in

Southeastern Pennsylvania. Majeed and Cauthorn became partners in 2005. The men

shared common suppliers and engaged in substantial sales of wholesale quantities of

cocaine to customers and distributors, including Gandy.

       Gandy first began purchasing cocaine from Majeed in the 1990s and continued to

do so through 2006. Gandy was designated as one of Majeed’s distributors and

eventually became part of the “inner circle” of the Majeed-Cauthorn organization. (S.A.

                                             2
175-76.) The three men regularly discussed prevailing prices for cocaine, security

measures to evade police detection, and individuals who stole money or drugs from other

dealers in the organization. At trial, Cauthorn explained that Gandy was included in

these conversations because “he basically was with us, so he had to be aware of the

situation just as well as me . . . .” (S.A. 171.) The men communicated in code or through

gestures and regularly replaced their cellular phones and phone numbers in order to evade

detection. Gandy also accompanied Majeed on drug sales on at least two occasions.

      Majeed was Gandy’s primary supplier, selling Gandy four and one-half or nine-

ounce parcels of cocaine, two to three times per month. Majeed sold cocaine on credit to

trusted customers with whom he had an established relationship, including Gandy.

Pursuant to this arrangement, Majeed provided Gandy with cocaine, and Gandy repaid

Majeed as he earned money from his own sales. Cauthorn testified that he observed

Majeed and Gandy conduct $10,000 cocaine transactions on five to ten occasions.

      When Majeed’s supply of cocaine was low, Cauthorn provided Gandy the desired

amount of cocaine. From 2005 to 2006, Cauthorn sold Gandy between nine ounces and

half a kilogram of cocaine on approximately five occasions. On one occasion, Cauthorn

supplied Gandy a kilogram of cocaine. At least one of these transactions was conducted

without Majeed’s knowledge. Like Majeed, Cauthorn sold to Gandy on credit.

      Gandy also facilitated cocaine purchases and sales by Barksdale, another

distributor to whom Majeed regularly sold two or three kilograms of cocaine per month

and who often served as a conduit between Majeed and other dealers. For example, in

January 2006, while Barksdale was recovering from a gunshot wound at a Pennsylvania

                                            3
hospital, Gandy delivered cocaine on Barksdale’s behalf to another dealer. On another

occasion, Gandy drove Barksdale to a sale and loaned him money to purchase cocaine.

                                             II.

       The District Court had jurisdiction under 18 U.S.C. § 3231, and we have appellate

jurisdiction pursuant to 28 U.S.C. § 1291.

                                             A.

       Count One of the indictment charged:

              From at least in or about January 2005, through in or about
              December 2006, in Philadelphia and the city of Chester, in
              the Eastern District of Pennsylvania, and elsewhere,
              defendants BURNIE MAJEED, TROY CAUTHORN,
              JAMILLE BARKSDALE, and KELVIN GANDY conspired
              and agreed, together with Edward Kaplan and Donald
              Johnson, charged elsewhere, and with others known and
              unknown to the grand jury, to knowingly and intentionally
              distribute 5 kilograms or more of a mixture and substance
              containing a detectable amount of cocaine, a Schedule II
              controlled substance, in violation of Title 21, United States
              Code, Section 841(a)(1), (b)(1)(A).

(S.A. 384.)

       Gandy first argues that the evidence adduced at trial proved multiple conspiracies,

rather than the single conspiracy charged in the indictment. Specifically, Gandy claims

that the evidence failed to show the existence of a single group whose purpose guided the

actions of all participants. Rather, argues Gandy, the evidence proved the existence of

only limited partnerships and, as to Majeed and Gandy specifically, a buyer-seller

relationship insufficient to support a finding of a single conspiracy.




                                              4
       “To make out a conspiracy charge, the Government must show: (1) a unity of

purpose between the alleged conspirators; (2) an intent to achieve a common goal; and

(3) an agreement to work together toward that goal.” United States v. Pressler, 256 F.3d

144, 147 (3d Cir. 2001). At trial, the District Court instructed the jury that whether there

existed a single or multiple conspiracies “is a question of fact for you to decide.” (S.A.

469.) The District Court further charged that “[i]f the Government’s proof does not

establish that [Gandy] was a member of [the] conspiracy [charged], then you may not

find him guilty even if, for example, the evidence showed he was a member of a different

conspiracy.” (S.A. 469.) The jury found beyond a reasonable doubt that the Government

proved the single conspiracy charged and that Gandy was a participant in it.

       “We apply a particularly deferential standard of review when deciding whether a

jury verdict rests on legally sufficient evidence, [as] ‘[i]t is not for us to weigh the

evidence or to determine the credibility of the witnesses.’” United States v. Dent, 149

F.3d 180, 187 (3d Cir. 1998) (quoting United States. v. Voigt, 89 F.3d 1050, 1080 (3d

Cir. 1996)). We must affirm a jury’s verdict where “there is substantial evidence that,

when viewed in the light most favorable to the government, would allow a rational trier

of fact to convict.” 1 United States v. Lee, 612 F.3d 170, 178 (3d Cir. 2010) (quoting


       1
          It is unclear whether Gandy’s sufficiency of the evidence argument has been
preserved for appellate review. “A defendant must move for a judgment of acquittal at
the conclusion of the evidence to properly preserve for appeal issues regarding the
sufficiency of the evidence.” United States v. Wolfe, 245 F.3d 257, 261 (3d Cir. 2001).
Where a defendant fails to do so, we review the sufficiency of the evidence under a plain
error, rather than substantial evidence, standard. See id.
        The parties’ appendices contain only excerpts from the sealed trial transcript and
do not reflect those portions of the trial during which a motion for judgment of acquittal
                                               5
United States v. Bornman, 559 F.3d 150, 152 (3d Cir. 2009)). An appellant alleging

insufficient evidence to support the verdict carries a “very heavy burden.” See United

States v. Gonzalez, 918 F.2d 1129, 1132 (3d Cir. 1990) (internal quotation marks and

citation omitted).

       Gandy fails to satisfy his “very heavy burden.” Id. First, Gandy fails to

demonstrate that there was insufficient evidence to support the jury’s finding that a single

conspiracy existed.

       We use a three-step test to determine whether a single conspiracy, rather than

multiple conspiracies, existed:

              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) (citing United States v.

DeVarona, 872 F.2d 114, 118-19 (5th Cir. 1989)).

       In determining whether defendants had a common goal, “we look to the

underlying purpose of the alleged criminal activity.” United States v. Rigas, 605 F.3d

194, 213 (3d Cir. 2010) (citing United States v. Greenidge, 495 F.3d 85, 93 (3d Cir.

2007); Kelly, 892 F.2d at 259). The evidence overwhelmingly establishes that Gandy,

would have been made, if at all. Neither party addresses the issue of preservation in its
brief. However, as discussed below, Gandy’s claim fails even under the more stringent
“substantial evidence” standard, and thus his challenge to the sufficiency of the evidence
would similarly fail under the less demanding plain error standard. See United States v.
Knox, 32 F.3d 733, 752-53 (3d Cir. 1994).
                                             6
Majeed, Cauthorn, and Barksdale continuously bought and sold cocaine, regularly coded

drug-trafficking conversations and took other steps to evade police detection, and

discussed their joint cocaine-trafficking business on a recurring basis throughout the

charged period. Thus, a jury could rationally conclude that the accused co-conspirators

shared the common goal of distributing five kilograms or more of cocaine.

       Second, “‘[a]s to whether the ‘nature of the scheme’ indicates a single conspiracy,

we look to whether there was evidence that the activities of one group . . . were necessary

or advantageous to another aspect of the scheme or to the overall success of the

venture.’” Greenidge, 495 F.3d at 93 (quoting Kelly, 892 F.2d at 259) (internal quotation

marks omitted). Here, “the agreement contemplated”—uninterrupted distribution of

wholesale quantities of cocaine in Philadelphia and Chester throughout 2005 and 2006—

“would not [have] continue[d] without the continuous cooperation of the conspirators.”

Kelly, 892 F.2d at 259. The evidence showed that Majeed and Cauthorn partnered in

2005 to ensure that each had an adequate supply of cocaine for distribution, regularly

purchasing large quantities from at least two common suppliers. The men further assisted

one another by providing cocaine when one was short and the other had an adequate or

surplus supply. The evidence further established that Gandy served as a distributor,

selling cocaine that he regularly received on credit from Majeed, and occasionally from

Cauthorn when Majeed’s supply was short. Gandy also facilitated cocaine sales for

fellow distributor Barksdale. Furthermore, Gandy, Majeed, and Cauthorn regularly

discussed issues critical to the successful distribution of cocaine, such as prevailing prices

and “counter-surveillance” issues and techniques. (S.A. 84.) Without the cooperation of

                                              7
Majeed, Cauthorn, and distributors, such as Gandy, the Majeed-Cauthorn organization

could not have succeeded.

       Finally, there was extensive overlap in the conspirators’ dealings. Majeed and

Cauthorn shared a common supplier and provided each other with cocaine when one

could not obtain the requisite amount from his usual supplier. Both men sold cocaine on

credit to distributors, including Gandy and Barksdale. On several occasions, Gandy

delivered cocaine and arranged sales for Barksdale. Gandy, Majeed, and Cauthorn

regularly discussed pricing and security concerns, communicating in code or gestures

understood only by the others. As Cauthorn explained, the men were part of an “inner

circle” from which “no information [left] . . . .” (S.A. 175.)

       Viewing this evidence in the light most favorable to the Government, we conclude

that it was sufficient to permit a reasonable jury to find that a single overarching

conspiracy existed. In this regard, as we observed in United States v. Smith, 789 F.2d

196, 200 (3d Cir. 1986), even “a finding of a master conspiracy with sub-schemes does

not constitute a finding of multiple, unrelated conspiracies . . . .”

                                              B.

       Gandy also argues that even if the evidence supported a finding that there existed a

single conspiracy, the evidence was not sufficient to show that he was a knowing

participant in it. Gandy argues that he was a “small customer” who did not distribute

cocaine on Majeed’s behalf and thus he is not liable as a conspirator.

       It is true that “a simple buyer-seller relationship, without any prior or

contemporaneous understanding beyond the sales agreement itself, is insufficient to

                                               8
establish that the buyer was a member of the seller's conspiracy.” United States v. Gibbs,

190 F.3d 188, 197 (3d Cir. 1999). But we went on to note in Gibbs that “‘even an

occasional supplier (and by implication an occasional buyer for redistribution) can be

shown to be a member of the conspiracy by evidence, direct or inferential, of knowledge

that she or he was part of a larger operation.’” Id. at 198 (quoting United States v. Price,

13 F.3d 711, 728 (3d Cir. 1994)). Factors relevant to the determination of whether a

defendant was a member of a conspiracy include: “the length of affiliation between the

defendant and the conspiracy,” the existence of “an established method of payment,” “the

extent to which transactions are standardized,” “whether there is a demonstrated level of

mutual trust,” and whether the “transactions involved large amounts of drugs.” Id. at

199.

       Evidence of much more than a “simple buyer-seller relationship” was presented

here. Multiple individuals, including Majeed and Cauthorn, 2 testified that two to three

times per month during the charged period, Gandy purchased from Majeed four and one-

half or nine-ounce parcels of cocaine. When Majeed could not supply the requisite

cocaine, Gandy obtained it from Cauthorn. On one occasion, Gandy purchased from

Cauthorn a kilogram of cocaine. Additionally, Gandy made pre-arranged purchases for

fellow distributor Barksdale, to whom he also lent money to finance drug purchases.

       2
          Emphasizing that Majeed and Cauthorn were known drug dealers who testified
in exchange for favorable dispositions in their own criminal cases, Gandy asserts that
their testimony cannot support the jury’s verdict. However, “in a review following
conviction, all issues of credibility within the province of the jury must be viewed in the
light most favorable to the government.” Gonzalez, 918 F.2d at 1132. Thus, we must
view the testimony of Majeed and Cauthorn in the light most favorable to the government
and treat such testimony as credible.
                                             9
Gandy obtained the cocaine on credit, a payment arrangement that this Court has found to

be relevant in establishing participation in a conspiracy because it may reflect mutual

trust and “mutual stake” in the alleged conspiracy. See Gibbs, 190 F.3d at 199.

       Although Gandy attempts to differentiate his involvement from that of fellow

distributor Barksdale on the ground that Barksdale relayed messages to dealers on

Majeed’s behalf and sold greater quantities of cocaine, Gandy admits that he

accompanied Majeed on drug deals on at least two occasions. Furthermore, Gandy’s

regular purchases of significant quantities of cocaine from Majeed and Cauthorn

demonstrate that he was more than a mere buyer “without any prior or contemporaneous

understanding beyond the sales agreement itself.” Gibbs, 190 F.3d at 197.

       Additional evidence of the “length of affiliation” between Gandy and the

conspiracy and “demonstrated level of mutual trust” among the conspirators was

presented in the form of taped conversations between Gandy, Majeed, Cauthorn, and

others detailing the operations of the conspiracy. Id. at 199. During these conversations,

the men communicated in code or gestures, further demonstrating Gandy’s familiarity

with the conspiracy and the mutual trust among the men. According to Cauthorn, Gandy

was included in the conversations because, as part of the “inner circle,” “he basically was

with us, so he had to be aware of the situation . . . .” (S.A. 171, 175-76.)

       Viewing this evidence in the light most favorable to the Government, we conclude

that there was sufficient evidence to permit a reasonable jury to find that Gandy was not a

one-time buyer, but rather a participant in the charged conspiracy to distribute cocaine.

                                             III.

                                             10
For the foregoing reasons, we will affirm the District Court’s judgment.




                                    11
