                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 11-4506
                                    ____________

                          UNITED STATES OF AMERICA

                                           v.

                                    JOSE LaBOY,
                                   a/k/a MONKEY

                                          Jose LaBoy,
                                               Appellant
                                    ____________

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                              (D.C. No. 5-10-cr-00335-002)
                    District Judge: Honorable Lawrence F. Stengel
                                     ____________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                November 14, 2012

              Before: SCIRICA, FISHER and JORDAN, Circuit Judges.

                             (Filed: November 28, 2012 )
                                    ____________

                             OPINION OF THE COURT
                                  ____________

FISHER, Circuit Judge.

      Jose LaBoy was convicted of conspiracy to distribute cocaine. He appeals his

judgment of conviction and sentence, and his counsel seeks to withdraw pursuant to

Anders v. California, 386 U.S. 738 (1967). We will affirm and grant counsel’s motion to

withdraw.
                                              I.

       Because we write principally for the parties, who are familiar with the factual

context and legal history of this case, we will set forth only those facts that are necessary

to our analysis.

       LaBoy was the target of a police investigation into crack cocaine distribution in

the Allentown, Pennsylvania area. The investigation included a series of controlled

purchases of crack cocaine by a confidential informant who gathered evidence that was

later seen and/or heard at trial. The informant, Leanna Breeland, delivered the gathered

evidence to Detective Randy Fey after each controlled purchase, and all products

purchased from LaBoy tested positive for cocaine. During the course of the

investigation, LaBoy and his associates were seen producing crack cocaine and were

heard discussing their business relationships with Breeland.

       LaBoy was charged in an indictment filed in the Eastern District of Pennsylvania.

After a jury trial, LaBoy was convicted of one count of conspiracy to distribute fifty

grams or more of cocaine base in violation of 21 U.S.C. § 846; five counts of distribution

of five or more grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and

841(b)(1)(B); and five counts of distribution of five or more grams of cocaine base within

1,000 feet of school property in violation of 21 U.S.C. § 860(a). The District Court

sentenced LaBoy to 72 months imprisonment followed by six years of supervised release.

       LaBoy’s timely appeal to this Court followed.


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                                              II.

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have

appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. Counsel may file a

motion to withdraw representation under Anders if, after reviewing the record, he is

“persuaded that the appeal presents no issue of even arguable merit.” Third Circuit

L.A.R. 109.2(a). Our inquiry when counsel submits an Anders brief is twofold:

(1) whether counsel thoroughly examined the record in search of appealable issues and

explained why the issues are frivolous; and (2) whether an independent review of the

record presents any non-frivolous issues. United States v. Youla, 241 F.3d 296, 300 (3d

Cir. 2001). If we determine that “the Anders brief initially appears adequate on its face,”

the second step of our inquiry is “guided . . . by the Anders brief itself.” Id. at 301

(quotation marks and citation omitted).

                                             III.

       Counsel’s Anders brief identifies five potentially appealable issues: (1) whether

the District Court properly overruled hearsay objections to Detective Fey’s testimony

regarding what he heard while monitoring Breeland’s transmitter during the drug buys in

question; (2) the purported inaccuracies of transcriptions of recorded drug transactions;

(3) whether the District Court correctly overruled objections that Breeland was

improperly interpreting terms heard during recorded conversations with LaBoy;




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(4) whether the government presented sufficient evidence to prove LaBoy conspired to

sell crack cocaine; and (5) whether the sentencing proceeding, and outcome, were legal.

       Because counsel’s Anders brief appears to be thorough and adequate on its face,

we now examine the arguments it presents. 1

                                              A.

       “Whether a statement is hearsay is a legal question subject to plenary review. If

the district court correctly classifies a statement as hearsay, its application of the relevant

hearsay exceptions is subject to review for abuse of discretion.” United States v. Price,

458 F.3d 202, 205 (3d Cir. 2006) (internal citations omitted). We agree that LaBoy’s

hearsay objections regarding Detective Fey’s testimony were properly overruled. An out

of court statement is considered hearsay if it is “offered in evidence to prove the truth of

the matter asserted.” Fed. R. Evid. 801(c). LaBoy objected at trial to testimony given by

Detective Fey on direct examination as to what he heard transmitted through a listening

device placed on a confidential informant regarding a suspected drug transaction. The

government responded that the testimony was not offered for the truth of the statements

themselves, but was intended to explain subsequent actions taken by Detective Fey. The

District Court correctly ruled that the testimony was admissible as background testimony

showing Detective Fey’s motivation for his subsequent course of conduct. See Price, 458


       1
         On June 6, 2012, a copy of counsel’s Anders brief was furnished to LaBoy, who
was given time to raise any non-frivolous arguments in a pro se brief in response. LaBoy
has failed to file such a brief.

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F.3d at 210 (holding that police officers are permitted “to explain the background context

for their arrival at a scene” and that such background statements are admissible non-

hearsay “[w]hen the explanation cannot be effected without relating some contents of the

information received”).

                                             B.

       At trial, LaBoy objected to the use of a transcription of a video recording entered

into evidence. “[T]he standard of review for use of [a] transcript as a listening aid is an

abuse of discretion.” United States v. DiSalvo, 34 F.3d 1204, 1220 (3d Cir. 1994). The

District Court provided a clear and precise limiting instruction to the jury in which it

stated that the transcript was not evidence, but merely an aid to assist in viewing the

recording. Any confusion that the transcript could have caused was cured through the

use of this limiting instruction. See Gov’t of V.I. v. Martinez, 847 F.2d 125, 128 (3d Cir.

1988) (approving use of transcript by jury because court provided limiting instructions

that “properly advised the jury as to the limited role to be served by the transcript”). The

District Court therefore did not abuse its discretion in overruling LaBoy’s objection.

                                             C.

       LaBoy also objected at trial to those portions of Breeland’s testimony in which she

explained aspects of her recorded conversations with LaBoy. We review evidentiary

rulings for abuse of discretion. United States v. Williams, 458 F.3d 312, 315 (3d Cir.

2006). Under Federal Rule of Evidence 701, “lay witnesses may state their


                                              5
understanding of the use of another person’s statements ‘only if rationally based on the

perception of a witness and helpful either to an understanding of the testimony of the

witness on the stand or to the determination of a fact in issue.’” United States v. De Peri,

778 F.2d 963, 977 (3d Cir. 1985) (quoting United States v. Cox, 633 F.2d 871, 875 (9th

Cir. 1980)). Here, the District Court correctly allowed Breeland’s testimony because it

was limited in scope to the explanation of slang, abbreviations, nicknames, double

meanings, and her understanding of what comments directed to her by the defendant

actually meant. See id. (witness’s testimony as to his understanding of tape-recorded

conversations with defendant admissible because language used was “sharp and

abbreviated, composed with unfinished sentences and punctuated with ambiguous

references”).

                                             D.

       Counsel’s Anders brief next discusses the possibility of a challenge to the

sufficiency of the government’s evidence to support a charge of conspiracy to distribute

crack cocaine. “The burden on a defendant who raises a challenge to the sufficiency of

the evidence is extremely high.” United States v. Iglesias, 535 F.3d 150, 155 (3d Cir.

2008) (internal quotation marks omitted). In reviewing a jury verdict for sufficiency of

the evidence, we must view the evidence in the light most favorable to the verdict winner,

id., and will reverse such a verdict “only when the record contains no evidence,

regardless of how it is weighted, from which the jury could find guilt beyond a


                                             6
reasonable doubt.” United States v. Mussare, 405 F.3d 161, 166 (3d Cir. 2005) (internal

quotation marks omitted).

       To prove conspiracy under 21 U.S.C. § 846, the government must show (1) unity

of purpose between the alleged conspirators, (2) intent to achieve a common goal, and

(3) an agreement to work together towards that goal. Iglesias, 535 F.3d at 156. The

government provided substantial evidence showing a collaboration between LaBoy and

other suspects. This evidence not only established the defendant’s involvement in these

transactions, but demonstrated his repeated planning and execution of the selling of crack

cocaine by relying on his brother, John LaBoy, and Alberto Figueroa. A rational jury

could have found that these multiple transactions established the existence of a

conspiracy. We therefore agree with the District Court that this evidence was sufficient

to support a charge of conspiracy to distribute crack cocaine.

                                             E.

       Finally, counsel’s Anders brief discusses the sentence imposed on LaBoy by the

District Court. We review de novo a district court’s interpretation of the Sentencing

Guidelines and scrutinize for clear error any findings of fact used in calculating the

sentence. United States v. Wood, 526 F.3d 82, 85 (3d Cir. 2008). As counsel notes, the

District Court’s sentence did not exceed the statutory maximum (40 years), and did not

upwardly depart from the guideline range recommended by the Presentence Report (87 to

108 months). At the sentencing hearing, the District Court considered the Presentence


                                             7
Report, the arguments of both parties, and the relevant sentencing factors listed in 18

U.S.C. § 3553(a). The District Court’s sentence was not in error.

                                            IV.

       For the reasons set forth above, we will grant counsel’s motion to withdraw and

affirm the District Court’s judgment of conviction and sentence.




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