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 support his conviction on either 

count. With respect to the conspiracy charge, Keith also contends that, even if 

the evidence was sufficient to prove a conspiracy, there was a material variance 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 10, 2014

Lyle W. Cayce

Clerk

 

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between the allegation of a single conspiracy in the superseding indictment 

and the trial evidence which allegedly 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). The “only question” before us is whether the jury’s “finding 

was 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 innocence.” 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 Kenyetta Bailey, however, indicates 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 

banc). Additionally, the quantity of drugs involved, while not by itself 

sufficient to support a conspiracy conviction, does support the inference that a 

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conspiracy to distribute crack cocaine existed. Id. at 344. Finally, evidence 

that others were sometimes 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, even 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 this

claim in the district court, 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 that 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 citation omitted). As Keith has not demonstrated a 

clear or obvious material variance, he cannot demonstrate that his substantial 

rights were affected. See id.

Keith finally 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 that improperly admitted evidence, the

remaining evidence was insufficient to support his conviction for possession 

with intent to distribute. Keith conflates a claim of improperly admitted 

evidence with a claim of insufficiency of the evidence by contending that the 

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challenged testimony was inadmissible hearsay and that the government was 

improperly permitted to elicit the testimony on redirect examination. Keith 

finally claims that it was error not to allow him to conduct re-cross examination 

of the relevant witness.

As an initial matter, Keith’s passing reference to inadmissible hearsay 

is insufficient to raise the issue on 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 unavailing. We 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 government 

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 within its 

discretion to allow the government to elaborate more fully on that line of 

questioning. See id. Even if it were error to allow the government to delve 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 further challenge the testimony, any error was harmless. See Franklin, 

561 F.3d at 404. Finally, the 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 to allow a rational jury to conclude beyond a reasonable 

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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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