NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 16-3198

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UNITED STATES OF AMERICA,

 

v.

EUGENE STALLINGS, JR.,

 Appellant

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On Appeal from the United States District Court

for the Middle District of Pennsylvania

(M.D. Pa. No. 1-14-cr-00069-007)

District Judge: Honorable Christopher C. Conner

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Submitted Under Third Circuit LAR 34.1(a)

on June 13, 2017

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Before: JORDAN, KRAUSE, Circuit Judges, and STEARNS, District Judge,

*

(Opinion Filed: July 18, 2017)

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OPINION**

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KRAUSE, Circuit Judge.

 

* The Honorable Richard G. Stearns, United States District Judge for the District 

of Massachusetts, sitting by designation.

** This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,

does not constitute binding precedent.
2

Following a jury trial, Eugene Stallings, Jr. was convicted of conspiring to 

distribute heroin and distributing and possessing with the intent to distribute heroin. On 

appeal, he raises a number of challenges to his conviction. For the reasons set forth 

below, we will affirm. 

I. Background

According to the testimony at trial, Stallings—based in Baltimore, Maryland—

sold heroin to Danny Forrester, Gabriel Stouffer, and Ashley Gries, heroin distributors in 

Pennsylvania, over the course of approximately five months. Known to his buyers as 

“Bruno,” Stallings communicated frequently with Forrester, Stouffer, and Gries, who 

traveled to Baltimore every week, and often every day, to purchase heroin from him. 

Stallings sold to them in bulk, up to twenty-four grams per sale, and they repackaged and 

resold the drugs in Pennsylvania.

In February 2014, twenty-one-year-old Kyle Golter died from a heroin overdose in 

Franklin County, Pennsylvania. Officers traced the heroin that caused Golter’s death 

back to Gries, and, after a brief investigation, Forrester, Stouffer, and Gries were indicted 

for multiple drug trafficking offenses. Shortly thereafter, all three gave statements 

identifying Stallings as their dealer, and Stallings was charged in a superseding 

indictment with two counts of conspiracy to distribute heroin and to possess with the 

intent to distribute heroin, in violation of 21 U.S.C. § 846; two counts of distribution and 

possession with the intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1); and 

one count of use of a communication facility to facilitate a drug trafficking offense, in 
3

violation of 21 U.S.C. § 843(b). Following a trial at which Forrester, Stouffer, and Gries

testified against him,

1

a jury convicted Stallings on all counts, and the District Court 

sentenced him to 252 months in prison. This timely appeal followed.

II. Discussion2

On appeal, Stallings advances four arguments. First, he asserts the Government 

adduced insufficient evidence that he conspired with the Pennsylvanians to distribute 

heroin. Second, he contends the District Court erred in refusing to give a buyer-seller 

instruction and misstated the law of conspiracy in the jury instructions given. Third, he 

argues venue was improper in the Middle District of Pennsylvania for the distribution 

counts. And, finally, he challenges the District Court’s application of the Speedy Trial 

Act. We address these issues in turn.

A. Sufficiency of the Evidence

Stallings first argues there was insufficient evidence to support his conspiracy 

conviction because “there was not a single fact indicating more than an arm’s-length,

buyer-seller relationship.” Appellant’s Br. 20. We apply a “highly deferential” standard 

of review to determine if the evidence was legally sufficient, United States v. CaraballoRodriguez, 726 F.3d 418, 430 (3d Cir. 2013) (en banc), and, viewing the evidence in the 

light most favorable to the Government, we will sustain a conviction if “any rational trier 

of fact could have found the essential elements of the crime beyond a reasonable doubt,” 

 

1 All of Stallings’s codefendants pled guilty prior to trial. 

2 The District Court had jurisdiction to hear this case under 18 U.S.C. § 3231, and 

we have jurisdiction under 28 U.S.C. § 1291. 
4

United States v. Cuevas-Reyes, 572 F.3d 119, 121 (3d Cir. 2009) (citation omitted). 

Stallings cannot meet this heavy burden. 

To prove conspiracy under 21 U.S.C. § 846, the Government must demonstrate 

both that a conspiracy existed and that Stallings was a member of it. United States v. 

Iglesias, 535 F.3d 150, 156 (3d Cir. 2008). To establish the conspiracy, the Government 

must prove: “(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. Perez, 280 F.3d 

318, 342 (3d Cir. 2002) (internal quotation marks and citation omitted). As the District 

Court noted, Stouffer’s testimony gave “almost verbatim” the elements of a conspiracy 

charge. J.A. 614. Stouffer testified that after buying heroin from Stallings, Stouffer and 

Gries would “bag [the heroin] into bags [to] get ready to sell it,” “sell[] [the heroin] 

together and tak[e] the profits and put[] them together,” and “share[] with each other 

what [they] were doing” so that they “both benefited from the sale.” J.A. 518, 524. This 

testimony was more than sufficient for a rational juror to find a conspiracy to distribute 

heroin. 

The evidence was also sufficient for a rational juror to conclude that Stallings was 

a member of that conspiracy, i.e., that he knew he was part of a larger operation, and not 

in a mere buyer-seller relationship. See United States v. Price, 13 F.3d 711, 728 (3d Cir. 

1994). In United States v. Gibbs, we laid out six factors relevant to this determination, 

noting that the presence of just one of these factors “furthers the inference that the [seller]

knew that he was part of a larger operation and hence can be held responsible as a coconspirator.” 190 F.3d 188, 199–200 (3d Cir. 1999). Here, we have three such factors: a 
5

lengthy affiliation with the conspiracy, transactions involving large amounts of drugs, 

and a demonstrated level of mutual trust.

3

 See id. at 199. Forrester, Stouffer, and Gries 

each testified that they bought heroin from Stallings every week and often every day over 

a five-month period, that Stallings regularly sold them eight to ten grams (and sometimes 

up to twenty-four grams) of heroin at a time, with each gram yielding at least twenty 

individual packages of heroin for resale, and that the quantities of drugs that Stallings

typically sold to them increased over time—a trend indicating that trust developed 

between the parties over the five-month arrangement, see id. (explaining that a “large 

transaction or an accumulation of deals suggests more trust, garnered over . . . time”). 

Thus, we agree with the District Court that there was sufficient evidence to support 

Stallings’s conspiracy convictions.4 

 

3 Although Stallings emphasizes repeatedly that one of the other Gibbs factors—

whether the drugs were purchased on credit—was not met, Gibbs itself instructs that the

absence of any one factor is “not necessarily dispositive.” 190 F.3d at 199. 

4 Stallings contends that this case is a “virtual sequel” to our decision in United 

States v. Pressler, 256 F.3d 144 (3d Cir. 2001). Appellant’s Br. 26. In Pressler, 

however, we vacated a drug dealer’s conspiracy conviction because we concluded the 

record supported only a string of unrelated buyer-seller relationships among the parties 

and there was “no independent evidence of an overarching conspiracy.” Id. at 147, 152. 

Here, in contrast, there was ample evidence of the existence of a conspiracy and of 

Stallings’s participation in it, and, thus, Gibbs, not Pressler, controls. See Pressler, 256 

F.3d at 147 (distinguishing Gibbs as applicable when the question presented is “whether 

the defendant had joined [an existing conspiracy],” as opposed to “whether a conspiracy 

existed at all”). 
6

B. Jury Instructions

Stallings next contests the jury charge on two separate grounds, asserting that he 

was entitled to a buyer-seller instruction and the jury instructions misstated the law of 

conspiracy. These challenges lack merit. 

We review a district court’s refusal to give a proposed jury instruction for abuse of 

discretion. United States v. Hoffecker, 530 F.3d 137, 167 (3d Cir. 2008). A defendant is 

not entitled to an instruction on a defense theory if his theory is not supported by the 

evidence or his proposed instruction is duplicative of instructions already included in the 

charge. Id. at 176. As the District Court explained, there was clear evidence of 

conspiracy in this case, and, as such, the Court did not abuse its discretion in denying 

Stallings’s request for a buyer-seller instruction. See United States v. Boone, 279 F.3d 

163, 192 (3d Cir. 2002) (affirming the denial of defendant’s request for a singletransaction instruction where the evidence was “sufficient to prove a conspiracy”). 

Moreover, the buyer-seller instruction was also unnecessary because the essence of 

Stallings’s request—that the jury be told a buyer-seller arrangement does not establish a 

conspiracy—was covered by the conspiracy charge given. See Hoffecker, 530 F.3d at 

177. The jury, in other words, was required to find the co-conspirators’ unity of purpose, 

intent, and agreement to work together to distribute heroin in order to convict Stallings of 

conspiracy—findings that necessarily foreclose a mere buyer-seller relationship. 

Stallings also argues the jury instructions misstated the law of conspiracy by 

likening multiple buy-sell arrangements to multiple conspiracies. Because Stallings 
7

failed to object to the jury instructions at trial, we review for plain error.5 See United 

States v. Salahuddin, 765 F.3d 329, 337 (3d Cir. 2014). That is, we may not reverse

unless there was error that was “clear or obvious[,]... affected the defendant’s substantial 

rights[,] and ... seriously affected the fairness, integrity, or public reputation of the legal 

proceeding.” United States v. Tyson, 653 F.3d 192, 211 (3d Cir. 2011). That high

threshold is not met here. 

The jury instruction in question simply summarized Stallings’s defense theory, 

stating that “[i]n response to the conspiracy charges Mr. Stallings has argued that there 

was no conspiracy, or alternatively that there were merely two or more separate buy/sell 

arrangements between Mr. Stallings and the other alleged coconspirator[s],” and then 

proceeded to inform the jury, before providing an instruction on single or multiple 

conspiracies, that “[w]hether a single conspiracy or multiple conspiracies exist is a 

question of fact that you must decide.” J.A. 695. Even if the reference to “two or more 

separate buy/sell arrangements” immediately preceding the instruction on whether there 

were single or multiple conspiracies, J.A. 695, would have caused confusion in isolation,

jury instructions “must be read as a whole,” and “[w]e will affirm the district court when 

the charge as a whole fairly and adequately submits the issues in the case to the jury.” 

 

5 Stallings argues that his “earlier request for the accurate buyer-seller instruction 

was sufficient to preserve the error.” Appellant’s Reply Br. 8. This general request, 

however, which made no reference to the multiple conspiracy instruction at issue on 

appeal, did not preserve his objection. See United States v. Santos, 932 F.2d 244, 251–52 

(3d Cir. 1991). In fact, when provided with a copy of the draft jury instructions, defense 

counsel affirmatively stated he had no objections; nor did he object after the instruction 

was given at trial.
8

Gov’t of the V.I. v. Mills, 821 F.3d 448, 465 (3d Cir. 2016) (internal quotation marks and 

citations omitted). Here, where the rest of the jury charge on conspiracy proceeded 

almost verbatim from our own model instructions, and adequately presented the elements 

of conspiracy to the jury, the plain error standard is not met. See United States v. 

Petersen, 622 F.3d 196, 208 (3d Cir. 2010) (noting “[w]e have a hard time concluding 

that the use of our own model jury instruction can constitute error”).

C. Venue

Stallings’s next argument is that venue did not lie in the Middle District of

Pennsylvania for the two distribution counts because “the relevant possession and 

distribution took place exclusively within the District of Maryland.” Appellant’s Br. 34. 

We review legal questions regarding venue de novo, see United States v. Auernheimer, 

748 F.3d 525, 532 (3d Cir. 2014), and find no legal error here.

When assessing whether a defendant was tried in the proper venue, we “identify 

the conduct constituting the offense” and then “discern the location of the commission of 

the criminal acts,” id. (citation omitted), bearing in mind that any offense “begun in one 

district and completed in another . . . may be inquired of and prosecuted in any district in 

which such offense was begun, continued, or completed,” 18 U.S.C. § 3237(a). As the 

District Court observed, Stallings repeatedly reached out to Forrester, Stouffer, and Gries 

to orchestrate sales of heroin, and did so knowing the heroin would be resold in 

Pennsylvania. Although Stallings’s distribution began in Maryland, it ended in the 

Middle District of Pennsylvania, and, thus, venue was proper there. See United States v. 

Uribe, 890 F.2d 554, 558–59 (1st Cir. 1989) (noting that possession with intent to 
9

distribute is a continuing offense under § 3237(a)); cf. United States v. Malfi, 264 F.2d 

147, 150, 152 (3d Cir. 1959) (holding venue appropriate in New Jersey for charge of 

aiding and abetting a drug sale where the defendant agreed to terms of drug sale and 

received payment in Pennsylvania before having associate deliver drugs to New Jersey). 

D. Speedy Trial Act

Finally, Stallings challenges the District Court’s denial of his motion to dismiss 

pursuant to the Speedy Trial Act, asserting that continuances were improperly granted 

from June 2015 to November 2015 and from December 2015 to February 2016.

6 When a 

continuance is granted “after a proper application of the statute to established facts,” we 

review only for abuse of discretion. United States v. Rivera Constr. Co., 863 F.2d 293, 

295 n.3 (3d Cir. 1988). Here, we find none.

The Speedy Trial Act requires a defendant be brought to trial within 70 days of an

indictment or initial court appearance, whichever comes later. See 18 U.S.C. 

§ 3161(c)(1). Any delay following a motion for a continuance, however, is excludable if 

the district court finds “the ends of justice served by taking such action outweigh the best 

interest of the public and the defendant in a speedy trial.” Id. § 3161(h)(7)(A). A 

“reasonable period of delay” is also excludable “when the defendant is joined for trial 

with a codefendant as to whom the time for trial has not run and no motion for severance 

 

6 Although the District Court briefly noted that it believed Stallings’s motion to 

dismiss on speedy trial grounds to be untimely, it issued a written opinion addressing the 

merits of that motion, and the Government does not raise timeliness as an issue on 

appeal. Thus, we will proceed to review the District Court’s determination on 

substantive and not merely procedural grounds. 
10

has been granted.” Id. § 3161(h)(6). As a result, once defendants are joined for trial, “an 

exclusion applicable to one defendant applies to all codefendants.” United States v. 

Arbelaez, 7 F.3d 344, 347 (3d Cir. 1993) (internal quotation marks and citation omitted). 

Stallings contends the District Court erred in granting continuances from June 

2015 to November 2015 to facilitate ongoing plea negotiations with Stallings’s

codefendants and to enable new counsel for Stouffer time to prepare for trial. However, 

we have previously held that an “ends of justice” continuance may be granted “in 

appropriate circumstances to permit plea negotiations to continue,” United States v. 

Fields, 39 F.3d 439, 445 (3d Cir. 1994), and to allow new counsel sufficient time to 

prepare his case, Rivera Constr. Co., 863 F.2d at 296–97. See also 18 U.S.C. 

§ 3161(h)(7)(B)(iv). Thus, because these continuances were properly excludable against

Stallings’s codefendants and Stallings never filed a motion to sever, these continuances 

properly applied to him, too.7 See 18 U.S.C. § 3161(h)(6); Arbelaez, 7 F.3d at 347. 

Stallings also argues that the District Court erred in granting a continuance from 

December 2015 to February 2016 to accommodate Government witnesses’ and the

prosecutor’s scheduling conflicts. When considering an “ends of justice” continuance, a 

court should assess whether the failure to grant it “would unreasonably deny . . . the 

 

7

 Stallings correctly points out that the time excludable under 18 U.S.C. 

§ 3161(h)(6) is subject to a reasonableness constraint. That constraint is not implicated

here, however, because Stallings’s codefendants concurred in each request for a 

continuance, and the District Court explicitly noted when granting each continuance that, 

while Stallings did not concur, his case had not been severed from those of his 

codefendants. When, despite this explanation from the District Court, Stallings still did 

not move to sever, the subsequent period of delay cannot be deemed unreasonable. 
11

Government continuity of counsel . . . or the attorney for the Government the reasonable 

time necessary for effective preparation.” 18 U.S.C. § 3161(h)(7)(B)(iv). That standard 

is met where, as here, the prosecutor had a sudden family emergency in late November, 

requiring out-of-state travel with no certain return date, and another multi-defendant trial 

scheduled for mid-January.8 Accordingly, we find no abuse of discretion in the District 

Court’s application of the Speedy Trial Act. 

III. Conclusion

For the above-stated reasons, we will affirm Stallings’s convictions. 

 

8 Although Stallings contends this continuance was improperly granted so that 

Government witnesses could attend pre-planned hunting trips in mid-December, it is not 

clear that any part of the continuance was attributable solely to accommodating these 

plans. Given the uncertainty surrounding the prosecutor’s schedule, it was not an abuse 

of discretion for the District Court to continue the trial until February, rather than set an 

earlier date in December, which would then need to be rescheduled again if the 

prosecutor remained unavailable or unable to prepare for trial because of her family 

emergency.