### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 13

- 30837 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

- Appellee

v. ISIAH KEITH , Defendant

- Appellant

Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:10

- CR

- 332

- 1

Before SMITH, WIENER, and ELROD, Circuit Judges. PER CURIAM: * Defendant

- Appellant Isiah Keith appeals his jury conviction for conspiracy to possess with intent to distribute 280 grams or more of cocaine base and possession with intent to distribute 28 grams or more of cocaine base. He claims that the evidence was insufficient to suppor t his conviction on either count

. W ith respect to the conspiracy charge, Keith also contends that , e ven if the evidence was sufficient to prove a conspiracy, there was a material variance

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set f orth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED September 10, 2014 Lyle W. Cayce Clerk Case: 13-30837 Document: 00512764181 Page: 1 Date Filed: 09/10/2014No. 13

- 30837
b etween the allegation of a single conspiracy in the superseding in dictment and the trial evidence which allegedl y proved multiple conspiracies. Keith timely moved for a judgment of acquittal, so we review his sufficiency claim de novo; we review the evidence in the light most favorable to the verdict. United States v. Frye , 489 F.3d 201, 207 (5th Cir. 2007). In determining if there was sufficient evidence to support a conviction, the relevant question is whether “ any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ " United States v. Vargas

- Ocampo , 747 F.3d 299, 301 (5th Cir. 2014) (en banc) ( quoting Jackson v. Virginia , 443 U.S. 307, 319 (1979)) , petition for cert. filed (June 24, 2014) (No. 13

- 10737)

. T he “only question” before us is whether the jury’s “finding

w as so insupportable as to fall below the threshold of bare rationality.” Coleman v. Johnson , 132 S. Ct. 2060, 2065 (2012). “Direct and circumstantial evidence are given equal weight, and the evidence need not exclude every reasonable hypothesis of innoce nce.” United States v. Gonzales , 79 F.3d 413, 423 (5th Cir. 1996). A review of the evidence in the light most favorable to the verdict confirms that a rational trier of fact could have found beyond a reasonable doubt that Keith was guilty of conspiracy with intent to distribute. Keith contends that the evidence establishes only that he was in a buyer

- seller relationship. The testimony of Keny e tta Bailey , however, indicate s that Keith would often “ front ” him crack, to be repaid at a later date. This fact justifies the inference that Keith conspired with others to distribute crack cocaine; his relationship with Bailey went well beyond that of a “single buy

- sell agreement.” United States v. Delgado , 672 F.3d 320, 333 (5th Cir. 2012) (en ban c) . Additionally, the quantity of drugs involve d , while not by itself sufficient to support a conspiracy conviction, does support the inference that a

2 Case: 13-30837 Document: 00512764181 Page: 2 Date Filed: 09/10/2014No. 13

- 30837 conspiracy to distribute crack cocaine existed

. Id. at 344. Finally, evidence that others were sometim es required to pick up drugs for Bailey further supports the inference of a jointly undertaken enterprise to distribute crack cocaine. Id. at 333

- 34. Keith maintains that, e ven if the evidence adduced at trial was sufficient to prove a conspiracy, there was a material variance between the evidence and the facts charged in the superseding indictment. As Keith failed to raise th is claim in the district cou rt, we review it for plain error. See United States v. McCullough , 631 F.3d 783, 793 (5th Cir. 2011)

. Keith has not shown that there was a material variance between the indictment and the evidence presented at trial. At the very least, there was sufficient evidence to establish tha t Keith conspired with Bailey to violate federal drug laws . Even if the conspiracy proved at trial differed from the conspiracy alleged, Keith cannot establish that the variance affected his substantial rights

. We have “long held that when the indictment alleges the conspiracy count as a single conspiracy, but the government proves multiple conspiracies and a defendant ’ s involvement in at least one of them, then clearly there is no variance affecting that defendant ’ s substantial rights.” United States v. Faulkner , 17 F.3d 745, 762 (5th Cir. 1994) (internal quotation and cita tion omitted). As Keith has not demonstrated a clear or obvious material variance , he cannot demonstrate that his substantial rights were affected. See id

. Keith finall y contends , in an unorthodox point of error, that the admission of testimony linking him to approximately 80 grams of crack cocaine was evidentiary error and , without th at improperly admitted evidence, the remaining evidence was insufficient to support his conviction for possession with intent to distribute. Keith conflate s a claim of imp roperly admitted evidence with a claim of in sufficiency of the evidence by contending that the

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- 30837 challenged testimony was ina dmissible hearsay and that the g overnment was improperly permitted to elicit the testimony on redirect examination . Keith finally cl aims that it was error not to allow him to conduct re

- cross e xamination of the relevant witness. As an initial matter, Keith’s passing reference to inadmissible hearsay is insufficient to raise the issue o n appeal , and , by failing to brief the argument , he has abandoned it. See United States v. Scroggins , 599 F.3d 433, 446 (5th Cir. 2010)

. Keith’s central assertion regarding the scope of redirect examination is also unavai ling. W e review the district court’s evidentiary ruling for abuse of discretion

. United States v. Franklin , 561 F.3d 398, 404 (5th Cir. 2009). Here, the district court did not abuse its discretion. At trial, Keith’s counsel opened the door to additional questions from the g overnment on the subject of acceptance of responsibility. See United States v. Walker , 613 F.2d 1349, 1353 (5th Cir. 1980)

. The district court was well with in its discretion to allow the g overnment to elaborate more fully on that line of questioning. See id. Even if it w ere error to allow the g overnment to de lve into what was said to the witness , the fact that the testimony could be challenged at a later time means that the decision was not prejudicial. See United States v. Martinez , 151 F.3d 384, 390 (5th Cir. 1998) . Additionally, because Keith could furthe r challenge the testimony, any error was harmless. See Franklin , 561 F.3d at 404. Finally, t he court’s decision to preclude re

– cross examination was well within its discretion. See United States v. Fields , __ F.3d __ , No. 13

- 70025, 2014 WL 3746479, at 19

- 20 (5th Cir. July 30, 2014). As Keith ’s points of evidentiary error are without merit, we conclude that , when viewed in the light most favorable to the verdict, the record contains sufficient evidence t o allow a rational jury to conclude beyond a reason able

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- 30837 doubt that Keith possessed with intent to distribute 28 grams or more of cocaine base. See Vargas

- Ocampo , 747 F.3d at 301. The convictions as to both counts are AFFIRMED.

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