                                       NOT PRECEDENTIAL



        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT

                      _____________

                       No. 10-4632
                      _____________

            UNITED STATES OF AMERICA

                             v.

                HAROLD FITZGERALD,
                        Appellant

                      _____________


      On Appeal from the United States District Court
                 for the District of Delaware
           District Court No. 1-08-cr-00147-001
      District Judge: The Honorable Leonard P. Stark


     Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                   September 10, 2012

Before: SMITH, CHAGARES, and ALDISERT, Circuit Judges

               (Filed: September 13, 2012)

                 _____________________

                        OPINION
                 _____________________
Smith, Circuit Judge.

      Harold Fitzgerald challenges his conviction by a jury on multiple counts

related to a conspiracy to smuggle and sell drugs. We will affirm. 1

      Fitzgerald’s involvement with his co-conspirators pre-dated the charged

conspiracy. Robert Shepherd testified to Fitzgerald’s close relationship with and

performance of tasks for Andele Johnson, who purchased drugs from Vanivan

Fuller, a dealer in Texas, and directed their sale in Philadelphia and the

surrounding area.    Fuller testified that he spoke frequently with Fitzgerald to

coordinate shipments of drugs and money. After Johnson’s arrest, his childhood

friend Shepherd took over the operation. Shepherd testified that he often fronted

cocaine to Fitzgerald because he repaid his debts. Bradley Torrence, who assisted

Shepherd in the operation, testified that he sold Fitzgerald cocaine while Shepherd

was out of town and that he did not require full payment because of Fitzgerald’s

close relationship with Shepherd.

      This pre-conspiracy evidence demonstrates Fitzgerald’s intent during his

involvement in the charged conspiracy, which began in March 2006, following

Torrence’s arrest.      During the charged conspiracy, Shepherd and Fitzgerald

received shipments of cocaine from Fuller. Some of the cocaine belonged to

Fuller. Shepherd and Fitzgerald were expected to sell it and ship the profits back

1
  The District Court had jurisdiction under 18 U.S.C. § 3231. We have appellate
jurisdiction under 28 U.S.C. § 1291.
                                         2
to him. The remainder was paid for in advance by Shepherd and Fitzgerald and

belonged to them.      Fuller testified that Fitzgerald informed him on multiple

occasions that some of the cocaine belonged specifically to Fitzgerald, as

Fitzgerald had used his own money to purchase it. Shepherd testified that he and

Fitzgerald jointly scouted vacant apartments to which the packages of cocaine

could be safely shipped and that Fitzgerald would generally retrieve the packages.

Shepherd further testified that Fitzgerald would sometimes sell the packages

directly, while on other occasions they would meet and divide the contents. Cash

would then be sent back to Fuller. Shepherd and Fitzgerald would tell Fuller how

much cash to expect. The payment would include Fuller’s profits for his cocaine,

as well as Shepherd’s and Fitzgerald’s payment for the next shipment.

        Following Shepherd’s arrest, Fitzgerald engaged in at least one more

transaction with Fuller. Fuller testified that Fitzgerald met him in Tennessee and

accepted two kilograms of cocaine in return for money Shepherd had paid Fuller

just prior to Shepherd’s arrest. Fitzgerald’s travel to Tennessee is confirmed by

phone records. The nature of the transaction is corroborated by a contemporaneous

conversation Fuller had with Shepherd, which was recorded and played for the jury

at trial.

        Eventually, the conspiracy drew the attention of law enforcement. At trial,

Special Agent Scott Duffy testified that the FBI took note of a pattern of packages

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with similar features, namely the use of stolen corporate account numbers to pay

for the shipment, similar origin and destination addresses, and similar delivery

instructions. In August 2006, the FBI discovered that two packages fitting the

observed pattern were in transit to locations in Delaware. Testimony by Fuller

confirmed that he personally shipped those packages and that two or three

kilograms of cocaine were contained in each package. DEA Task Force Officer

Lawrence Collins testified that on August 24, 2006, he surveilled the first

Delaware location, observed the delivery of a FedEx package, and then observed

Fitzgerald enter the building and exit with a FedEx package. Robert Shepherd was

present in his own vehicle, and the officer observed a brief meeting between the

two. A similar delivery occurred two days later. Officer Collins and FBI Special

Agent Michelle Taylor testified as to Fitzgerald’s arrival at the package’s

destination and his eventual departure with the package. A note addressed to the

FedEx driver and the FedEx door tag were retrieved from that location. Both bore

Fitzgerald’s fingerprints.

      Fitzgerald was indicted and tried on four counts: Count I, conspiracy to

distribute cocaine in violation of 21 U.S.C. §§ 841 and 846; Counts II and III,

possession of cocaine with intent to distribute in violation of 21 U.S.C.

§§ 841(a)(1) and 841(b)(1)(B); and Count IV, conspiracy to commit money

laundering in violation of 18 U.S.C. § 1956. The jury convicted him on all counts.

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This timely appeal followed. Fitzgerald raises six discrete issues that allegedly

undermine his conviction. We will address each in turn.

      First, Fitzgerald questions the sufficiency of the evidence as to his

conviction on Count I, conspiracy to distribute cocaine in violation of 21 U.S.C.

§§ 841 and 846. We exercise plenary review following denial of a Rule 29 motion

for judgment of acquittal, but we apply the same standard as the District Court

must apply following a jury conviction. See United States v. Tyson, 653 F.3d 192,

199 (3d Cir. 2011). Therefore, we will “sustain the verdict if there is substantial

evidence, viewed in the light most favorable to the government, to uphold the

jury’s decision.” Id. at 199 (quoting United States v. Flores, 454 F.3d 149, 154 (3d

Cir. 2006)).

      In this case, we have no doubt the evidence was sufficient to support the

jury’s verdict. The Government has presented evidence – including fingerprint

evidence and direct observation by government agents – that Fitzgerald was

personally involved in the retrieval of at least two packages containing substantial

quantities of cocaine. It has presented shipping receipts and supporting testimony

demonstrating frequent shipment of similar packages. Fitzgerald’s co-conspirators

have offered testimony as to his relationship and involvement with them before the

conspiracy and his deep involvement in the conspiracy itself.        Some of this

evidence was corroborated by phone records and recorded phone conversations.

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      Fitzgerald cites our decision in United States v. Gibbs, 190 F.3d 188, 195

(3d Cir. 1999), and similar cases, and argues that he was in a mere “buyer-seller”

relationship and not part of a larger conspiracy. But the evidence clearly satisfies

Gibbs because it demonstrates that Fitzgerald “purchased drugs from the

conspiracy and . . . knew that the individual from whom he purchased the drugs

was part of a larger drug operation.” Id. The evidence also goes well beyond

Gibbs’ requirements, demonstrating that Fitzgerald was not merely a peripheral

player, but a core conspirator. Among other activities, he supplied his own money

to purchase bulk quantities of drugs, coordinated shipments of drugs and money,

scouted locations to receive shipments, and actually retrieved shipments himself.

This is no mere buyer-seller relationship. It is, in fact, difficult to conceive of a

more integral role.

      Second, Fitzgerald questions the sufficiency of the evidence as to his

conviction on Count IV, conspiracy to commit money laundering in violation of 18

U.S.C. § 1956. The Government presented evidence that Fitzgerald was involved

in concealing money – both his own and money belonging to co-conspirators – and

sending it to his supplier to receive additional drugs.      Fitzgerald claims that

movement or payment of money is a necessary component of participation in drug

crimes. He contends that while it might constitute additional evidence of drug




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crimes, this evidence is insufficient to sustain the independent charge of money

laundering.

      But money laundering includes knowingly conducting a financial transaction

using the proceeds of unlawful activity “with the intent to promote the carrying on

of . . . unlawful activity[.]” 18 U.S.C. § 1956(a)(1)(A)(i). “We have regularly

upheld money laundering prosecutions based on the reinvestment (‘plowing back’)

of proceeds.” United States v. Grasso, 381 F.3d 160, 169 (3d Cir. 2004), judgment

vacated on other grounds, 544 U.S. 945 (2005).         The Government presented

evidence that Shepherd, Fitzgerald, and their co-conspirators concealed and

shipped large amounts of money across the country to facilitate the ongoing

operation of the criminal conspiracy. Courts have recognized that “[p]ayment for

drugs may constitute ‘promotion’ for the purposes of the money laundering statute

when such payment encourages further drug transactions.” United States v. King,

169 F.3d 1035, 1039 (6th Cir. 1999); see also United States v. Bueno, 585 F.3d 847

(5th Cir. 2009); United States v. Krasinski, 545 F.3d 546 (7th Cir. 2008); United

States v. Torres, 53 F.3d 1129, 1137 n.6 (10th Cir. 1995).

      Third, Fitzgerald questions the sufficiency of the evidence as to his

conviction for Counts II and III, possession of cocaine with intent to distribute in

violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B).          These counts deal

specifically with the packages Fitzgerald was observed retrieving from the two

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Delaware locations in August 2006. Again, we will “sustain the verdict if there is

substantial evidence, viewed in the light most favorable to the government, to

uphold the jury’s decision.” Tyson, 653 F.3d at 199 (quoting Flores, 454 F.3d at

154). In addition, because Fitzgerald failed to preserve these objections before the

District Court, we will reverse only if there was plain error. See United States v.

Barel, 939 F.2d 26, 37 (3d Cir. 1991). As we have discussed, the Government has

presented evidence – including fingerprint evidence and direct observation by

government agents – that Fitzgerald was personally involved in the retrieval of the

two packages. Fuller testified that he personally shipped them and that they

contained two or three kilograms of cocaine each. Fitzgerald’s knowledge of their

contents can be inferred from his knowledge of the contents of similar packages

shipped throughout the conspiracy. Given this evidence, there was no plain error

in the jury’s verdict.

      Fourth, Fitzgerald challenges the District Court’s refusal to declare a mistrial

after Fuller testified: “I didn’t want to agree [to cooperate with the Government],

because I was in fear of my family being in danger and myself.” We review “the

denial of a motion for a mistrial based on a witness’s allegedly prejudicial

comments for an abuse of discretion.” United States v. Lore, 430 F.3d 190, 207

(3d Cir. 2005). Fitzgerald claims that this statement prejudiced the jury to believe

that Fitzgerald had threatened Fuller, and that Fuller was in fear for his life. We

                                          8
disagree. Even standing alone, the statement is not prejudicial to Fitzgerald. It is

natural that a drug conspirator would fear retaliation – from suppliers, co-

conspirators, and any number of other sources – for cooperating with the police.

Fuller does not state that Fitzgerald made him fear for his life, and the jury would

not necessarily assume such a fact absent more information.

      But Fitzgerald’s challenge of his conviction on this point is not merely weak,

it is frivolous. Fitzgerald’s counsel challenged the statement at trial and requested

a mistrial.   The Government correctly suspected that the witness was in fact

referring to his fear of retaliation from Mexican cartel members. The District

Court wisely gave the Government the opportunity to “clean up” the testimony,

and the Government did so. The witness further testified:

      Q. Mr. Fuller, without necessarily going into specifics, where are you
         generally obtaining the cocaine that you were involved in
         distributing?
      A. From the Mexican cartel.
      Q. Do you consider those people to be dangerous people?
      A. Yes, ma’am.
      Q. When you referred to being afraid of retribution, were you afraid
         of those people?
      A. Yes.

This clarifying testimony – which goes curiously unmentioned in Fitzgerald’s brief

– makes this challenge frivolous.

      Fifth, Fitzgerald challenges the admission of evidence of a continuous

relationship between himself and his co-conspirators. Fitzgerald asserts that the

                                         9
pre-conspiracy evidence offered by the Government is inadmissible under Federal

Rule of Evidence 404(b), which bars evidence offered to prove that a person

committed a crime based on their propensity to commit similar crimes. But such

evidence is admissible if it is intrinsic rather than extrinsic evidence, that is, if it is

“part and parcel of the charged offense.” United States v. Green, 617 F.3d 233,

245 (3d Cir. 2010). Intrinsic evidence is permitted because “there is no ‘other’

wrongful conduct at issue”; all the evidence offered is offered for the purpose of

proving one of the elements of the charged offense. Id.; see United States v. Cross,

308 F.3d 308, 320 (3d Cir. 2002) (“[A]cts are intrinsic when they directly prove

the charged conspiracy.”).

       The Government argues that the pre-conspiracy evidence offered here is

intrinsic evidence, and thus admissible. We agree. “The essential elements of a

drug distribution conspiracy under 21 U.S.C. § 846 are: ‘(1) a shared unity of

purpose, (2) an intent to achieve a common goal, and (3) an agreement to work

together toward the goal.’” United States v. Iglesias, 535 F.3d 150, 156 (3d Cir.

2008) (quoting United States v. Bobb, 471 F.3d 491, 494 (3d Cir. 2006)).

Evidence of Fitzgerald’s prior relationship with his co-conspirators and his active

engagement in the same criminal conduct using the same methods supports the

jury’s conclusion that he shared with them a unified purpose of conducting a drug

distribution conspiracy and an intent to achieve that goal, and that they worked

                                            10
together to reach it. It also confirms that he was aware of the contents of packages

he shipped and received.

      Finally, Fitzgerald challenges whether there was sufficient evidence of

conspiracy to admit the testimony of his co-conspirators. Statements “made by a

party’s coconspirator during and in furtherance of the conspiracy” are not hearsay,

and are thus admissible as evidence. Fed. R. Evid. 801(d)(2)(E). In order for a

court to admit such statements under Rule 801(d)(2)(E), the party seeking to offer

the evidence must demonstrate: “(1) that a conspiracy existed; (2) the declarant and

the party against whom the statement is offered were members of the conspiracy;

(3) the statement was made in the course of the conspiracy; and (4) the statement

was made in furtherance of the conspiracy.” United States v. McGlory, 968 F.2d

309, 333 (3d Cir. 1992). In determining whether the evidence is admissible, the

court can consider the statements themselves. Id. at 334.

      While Fitzgerald asserts that “the Government failed to demonstrate the first

element under the . . . McGlory standard,” Appellant’s Br. at 38, it is clear that he

is in fact challenging the second element of the standard, his involvement in the

conspiracy. Fitzgerald offers no argument that Shepherd and Fuller did not engage

in a drug distribution conspiracy; he offers no argument that the statements were

not made; and he offers no argument that the statements were not made in

furtherance of the conspiracy. Fitzgerald only challenges his involvement in the

                                         11
conspiracy. See id. (“Mr. Fitzgerald never entered into anything more than a mere

sales agreement with Mr. Shepherd and/or Mr. Fuller to purchase cocaine in an

individual capacity.”). But as we have detailed above, there was ample evidence to

conclude that Fitzgerald was a knowing and active participant in the conspiracy.

      For the foregoing reasons, we will uphold the jury’s verdict and affirm Mr.

Fitzgerald’s conviction on all four counts.




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