NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 09

- 2540

___________ UNITED STATES OF AMERICA

v. JEVON LEWIS, a/k/a V, a/k/a COOL V, a/ka VON Jevon Lewis, Appellant

_______________________ On App eal from the United States District Court for the District of New Jersey D.C. Criminal No. 06

- cr - 00076

- 1 (Honorable Joseph E. Irenas)

______________ Submitted Pursuant to Third Circuit LAR 34.1(a)

September 13, 2011 Before: SLOVITER, SCIRICA and SMITH, Circuit Judges

.

(Filed : October 11, 2011 )

_________________ OPINION OF THE COURT

_________________ SCIRICA, Circuit Judge

. Jevon Lewis was one of three co

- defendants tried and convicted in federal court
for participating in an ex tensive drug

- trafficking conspiracy based out of Camden , New2

Jersey

. All three defendants filed appeals, and we decide each in separate opinions

. This opinion addresses Lewis‟ s appeal. The jury found Lewis guilty of conspiracy to traffic drugs and of two m urder charges related to the conspiracy

. Lewis challenges his convictions contending the court erred: (1) in failing to give the jury his proffered “buy

sell” instruction ; (2 ) in failing to grant a mistrial after a g overnment witness gave testimony that ar guably violated the Confrontation Clause ; ( 3 ) in making improper evidentiary rulings ; and (4 ) in imposing an unreasonably lengthy sentence

. Lewis also contends there was insufficient evidence to support his convictions. We will affirm.
I.
We recite the fa cts relevant to this appeal in the companion case , United States v. Judge , No. 09

- 2248 (3d Cir. October 11 , 2011)

. I I. After a two month trial, the jury found Lewis guilty on three c ounts: conspiracy to
distribute and to possess with intent to distribute coc aine and cocaine base , under 21 U.S.C. §846 and § 841(b)(1)(A) ; murder in furtherance of a drug

- trafficking conspiracy , under 21 U.S.C. §848(e)(1)(A); and murder in the course of a firearms offense, under 18 U.S.C. §924. “ [W] e must view the evidence in the light most favorable to the government and must sustain the jury ‟ s verdict if a reasonabl e jury believing the government‟ s evidence could find guilt beyond a reasonable doubt.” United States v. Vosburgh , 602 F.3d 512, 537 (3d Cir. 2010) (internal quotation marks and citation omitted ). In conducting such review, we are “ever vigilant . . . not to usurp the role of the jury by3

weighing credibility and assigning weight to the evidence.” United States v. Wise , 515
F.3d 207 , 214 (3d Cir. 2008) ( internal quotatio n marks and citation omitted). There was ample evidence to support all three convictions. With respect to the conspiracy conviction , numerous witnesses testified that Lewis ran “ drug sets ,” areas known for drug sales, throughout Camden , including a flagshi p set at 8th and Central
S treets

. Trevor Smith, a member of the “MOB Boy s, ” testified about a time Lewis
cooked a bad batch of crack cocaine and admitted he was embarrassed. Troy Clark , another MOB Boy, testified to lending Lewis a few ounces of cocaine on consignment in 2001, to help him “get back on his feet ” as a drug dealer after being released from jail. Raymond Morales, a cooperating witness for the g overnment, admitted to supplying
Lewis with h undreds of kilograms of cocaine during the times alleged in the indictment

. With respect to the two murder c ounts, there was also sufficient evidence demonstrating Lewis‟ s guilt. Morales testified to paying Lewis $10,000 in cancelled drug
debts to have Kenneth Fussell killed , and he told the jury that after th e murder, Lewis reported “his boy” had carried it out

. C ircumstantial evidence show ed Lewis arranged for Ahmed Judge‟s bail but took steps to hide his assistance

. Nasser Perez tes tified Lewis
knew intim ate details of Fussell‟s killing.
Lewis attempts to re fute the evidence against him contending many of the
g overnment‟s witnesses were not credible , given their criminal histories

. But credibility is a jury question

. Wise , 515 F.3d at 214 (“The essence of the defendants‟ challenge to the sufficiency of the e vidence is that the witnesses who testified against them were not4

credible because they were all drug users. However, it is not our role to weigh the credibility of witnesses. . . . Given that constraint, a review of the record reveals that the
evidence is more than sufficient to sustain the verdicts .” ). Accordingly, when considered in the light mo st favorable to the g overnment , the evidence was more than sufficient to
prove Lewis‟ s guilt on all three c ounts

. In the alternative , Lewis argues we should grant him a new trial “in the interest of justice

. ” He claims the verdict was against the weight of the evidence. Lewis made this argument before the District C ourt in a Rule 33 motion, s ee Fed. R. Crim. P. 33 ( “Upon the defendant‟s motion, the court may vacat e any judgment and grant a new trial if the interest of justice so requires.”) , which the c ourt denied. We review for abuse of
discretion. United States v. Johnson , 302 F.3d 139 , 150 (3d Cir. 2002)

. The court did not abuse its discretion. Rule 33 r equests for a new trial “are not favored and should be „granted sparingly and only in exceptional cases.‟” United States v.
Silveus , 542 F.3d 993, 1005 (3d Cir. 2008) (citation omitted ). While a district court can grant a Rule 33 motion if it finds the jury‟s ver dict “contrary to the weight of evidence,”
it should do so “only if it „ believes that there is a serious d anger that a miscarriage of just ice has occurred

– that is, that an innocent person has been convicted. ‟ ” Johnson , 302
F.3d at 150 ( citation omitted)

. Here, Lewis failed to highlight any “serious danger tha t a miscarriage of justice ha[d] occurred

. ” H is core argument was that because the
g overnment‟s case depended heavily on cooperating witnesses, the c ourt should revisit
the record and vacate the jury‟ s findings. Lewis enjoyed ample opportunities to impeach5

the g overnment‟s witnesses at trial , and the jury was entitled to rely on their testimony.
The c ourt ‟s rejection of Lewis‟ s Rule 33 motion was proper.
I II.
Lewis contends the court erred in denying h is request for a “buy

- sell” jury
instruction to support his “mere buyer” defense theory

. Lewis requested an instruction stating, “[T] he mere agreement of one person to buy what another agrees to sell, standing alone, does not support a conspiracy convicti on.” W e review for abuse of discretion. See United States v. Petersen , 622 F.3d 196 , 207 n.7 (3d Cir. 2010).
The court did not abuse its discretion in refusing to give a buy

- sell instruction. A
defendant is entitled to a jury instruction on a defense the ory when that theory “ is supported by the evidence ” in the record, is not already part of the judge‟s intended charge, and “the failure to include [such an] instruction . . . would deny [the defendant] a fair trial.” United States v. Hoffecker , 530 F.3d 13 7, 176 (3d Cir. 2008) ( internal quotation marks and citation omitted). Although the court gave no reasons on the record, it is clear Lewis was not entitled to the charge

. 1 First, there was no evidence at trial that
Lewis “ was a mere purchaser of drugs for personal use and not an activ e participant in the conspiracy. ” United States v. Mitchell , 596 F.3d 18, 24 ( 1st Cir. 2010). Morales testified to selling large quantities of cocai ne to Lewis over several years ( up t o 25 kilograms a month) , often by “front[in g] ” the drugs on credit. Clearly, Lewis was not a

1 Lewis‟ s counsel filed a motion on February 21, 2008 requesting a buy

- sell charge. The c ourt circulated dra ft jury instructions on February 27 and held a charging conference on February 28. The conference was off the record.6

“one time participant” in Morales‟ s drug transactions. See United States v. Boone , 279
F.3d 163 , 192 (3d Cir. 2002) ( affirming the denial of defendant‟s request for a “single transaction” instruction becau se the evidence showed defendant was “a member of an ongoing conspiracy; not a one

- time participant”). Furthermore, the court‟s jury charge
stated that if the g overnment failed to prove Lewis “was a member of the conspiracy charged in the indictment , ” and the jury found Lewis only a purchaser of drugs or “a member of a separate conspiracy other than the one charged, ” the jury must enter “ not guilty ” on the conspiracy c ount

. See United States v. Mata , 491 F.3d 237, 241 (5th Cir. 2007) (“[A ]n adequate instru ction on the law of conspiracy precludes the necessity of giving a buyer

- seller instruction . . .”).
IV. Next, Lewis contend s the c ourt erred in failing to declare a mistrial after a
g overnment witness, Jermaine Coleman , gave testimony that arguably ran af oul of the
Confrontation Clause . On direct examination, Coleman stated Ahmed Judge

– a co defendant with Lewis on both th e conspiracy and murder charges

– admitted to killing
Kenneth Fussell because he “ had to put in some work for V

. ” “V” was a nickname for
Je von Lewis

. Lewis moved for a mistr ial, which the c ourt denied

. We exercise plenary
review over challenges that implicate the Confrontation Clause , and if we find a violation occurred, we consider whether the error was harmless beyond a reasonable doubt. Un ited
States v. Lore , 430 F.3d 190, 208

- 09 (3d Cir. 2005 )

.7

We need not reach whether Coleman‟s testimony ran afoul of the Confrontation Clause, 2 because any error in admitting such testimony was harmless. Coleman‟s mentioning Lewis when relating Judge‟s r emarks was fleeting a nd indirect. Coleman said
the name “V” once during a len gthy narrative answer, and the g overnment refrained from referring to that testimony again during trial

. Also, Coleman ‟s description of Lewis ‟ s involvement was vague. He recounted Judge saying , “ I had to put in some work for V. ”
T his was not a direct assertion ( by Judge) that Lewis ordered Fussell‟s murder

. Given the magnitude of the e vidence presented against Lewis and the fleeting and indirect nature of Coleman‟s testimony, the p rejudicial impact was minimal , if any, and any error harmless.
See United States v. Jimenez , 513 F.3d 62, 78

- 79 (3d Cir. 2008) ( holding that “ [a]ny Crawford violation . . . was har mless beyond a reasonable doubt ” given the cumulative
nature of the evidence and the corroborating evidence ); United States v. Hinton , 423 F.3d 355, 362 (3d Cir. 2005) (holding a Confrontation Clause violation was harmless error because “the jury verdict . . . would have been the same . . . had [the constitutionally

un sound] state ments not been admitted”).
V.
Lewis conten ds the court made ten erroneous rulings to admit evidence that should
have been barred under the Fed. R. Evid. , and each caused him sufficient prejudice to

2 C o - conspirator statements are generally deemed “ non - testimonial ” and do not trigger a defendant‟s rights under the Confrontation Claus e. Giles v. California , 554 U.S. 353 , 374 n.6 (2008); see also Crawford v. Washington , 541 U.S. 36, 56 (2004) (“Most of the hearsay exceptions covered statements that by their nature were not testimonial

– for example, . . . statements in furtherance of a conspiracy.”). We decline to reach whether Coleman‟s testimony about Judge‟s remarks qualified as a co

- conspirator statement.8

warra nt a new trial. We review for abuse of discretion

. 3 United States v. Starnes , 583
F .3d 196, 213

- 14 (3d Cir. 2009)

. All of Lewis‟ s challenges lack merit. First, Lewis claims the c ourt erred in admitting testimon y by Troy Cla rk about a
rumor on the streets alleging Raymond Morales had not killed Torey Bussie . Lewis
claims the rumor was inadmissible hearsay, and prejudicial because it lent credibility to
Morales , a key g overnment witness. Even if inadmissible hearsay , any er ror was harmless

. We find it highly improba ble that Clark‟s brief reference to a rumor about Morales‟ s lack of involvement in the Bussie murder contributed to the jury‟s verdict against Lewis

. Second, Lewis contends the c ourt erred in allowing Troy Cla rk to testify about seeing Lewis and co

- defendant Mack Jones “puttin togeth er . . . a bus iness transaction ” in a bar, violating Fed. R. Evid. 701 . Lewis argues Clark‟s opinion was too conclusory to be “rationally based on the perception of the witness.” Fed. R. Evid. 701 (a). We disagree

. Clark directly observed Lewis and Jones and given his pe rsonal knowledge of both , determined they were arranging a “business transaction

. ” The court did not abuse its discretion in admitting Clark‟s testimony as a lay opinion

.

3 When a defendant has not preserved his objection, we review for plain error. United States v. Rivas , 493 F.3d 131, 136 (3d Cir. 2007). The government urges we use plain error review fo r several of Lewis‟ s challenges

– namely, his challenge to Troy Clark‟s testimony about the rumor concerning Torey Bussie (the first challenge reviewed below); his challenge to Sergeant Wysocki‟s expert testimony (the third challenge reviewed below); and his challenge to Morales‟ s testimony about the shooting of Walter (the tenth challenge reviewed below). The government alleges Lewis made only “general objections” on such points and thereby failed to pr eserve his claims. We find the grounds for Lewis‟ s objections sufficiently “apparent from the context,” see Fed. R. Evid. 103(a)(1), and so r eview for abuse of discretion.9

Third, Lewis claims the c ourt erred in admitting Sergeant Joseph Wysocki ‟s testimony about working with the FBI on “ investigations of drug

- related murders in and
around Camden

. ” Lewis contends th is testimony was prejudicial, because it sugg ested
Fus sell‟s murder had been “drug related, ” and the prejudice outweighed any probative
value unde r Fed. R. Evid. 403. We disagree. There was considerable evidence

– much of it

not contradicted by Lewis

– demonstrating Morales arranged for Fussell‟s murder for

“ drug

- related” reasons. Wysocki‟s brief comment on this point was minor and
cumulative. T he c our t did not abuse its discretion in admitting Wysocki‟s testimony
under Rule 403

. Fourth, Lewis claims he must be a warded a new trial because the c ourt erred in allowing Karah Moore to testify about a tele phone call between Lewis and Ronnie Lopez.
Lewis argu es Moore‟s “interpretation” of the phone c onversation was speculative
because Moore had not been on the call

. The c ourt admitted the testimony over Lewis‟ s objection because it conclude d Moore had sufficient personal knowledge of the
conversation , given th at he was sitting next to Lewi s throughout the call , could hear Lewis‟ s end , and joined at one point by taking the phone out of Lewis‟ s hand

. The admission of the testimony was not an abuse of discretion.
F ifth , Lewis argues the c ourt erred in allowing o ne of the MOB Boys, Bernard Murray, to refer to various persons in Camden as “soldiers ” of Jevon Lewis. 4 Lewis objected to this characterization at trial , and he argues the testimony should not have been

4 Troy Clark had testified the term “soldier” in the parlance of Camden drug dealer s meant a “young boy . . . who might sell for you on the set.”10

allowed because it was speculative and prejudicial

. Again, we find no abuse of discretion

. The court admitted Murray‟s description because it believed Murray‟s years as drug
dealer in Camden provided him a sufficient foundation for his opinion. Sixth, Lewis argues the c ourt erred in denying his motion to p reclude Troy Clark from testifying about a conversation Clark had with Ahmed Judge and Jamar Bacon in
mid

- 2001, during which Judge and Bacon allegedly complained to Clark that Lewis “was stretchin” his cocaine. Th e c ourt did not abuse its discretion in adm itting Clark‟s testimony because that testimony satisfied the co - conspirator exemption to the hearsay
rule

. 5 See Fed. R. Evid

. 801(d)(2)(E). To admit testimo ny under 801(d)(2)(E), a court must find by a preponderance of the evidence: (1) a conspiracy exis ted, in which the declarant and the party against whom the statement is offered were members, and (2) the statement was made in the course of and in furtherance of the conspiracy. United States v. Vega , 285 F.3d 256 , 264 (3d Cir. 2002). Here, the c ourt had more than adequate evidence to determine a conspiracy to traffic drugs existed in 2001 among Judge, Bacon and
Lewis

. The c ourt also had reason to construe Bacon and Judge‟s complaint to Clark as
f urthering the conspiracy because their goal appeared to be securing a new source of
cocaine and thus benefitting the collective operation.

5 The court‟s basis for denying Lewis‟ s motion to exclude Clark‟s testimony does not appear in the record. Neither party cites to the record when discussing this issue. Nonetheless, because bot h parties analyze Clark‟s testimony with reference to the co

conspirator exemption under Rule 801(d)(2)(E), we assume the court premised its decision on that rule.11

S eventh , Lewis argues the c ourt erred in allowing Karah Moore to testify about a

st atement by Dinell Reed in which Reed admitted to killing Torey Bussie . Lewi s contends Moore ‟s testimony was hearsay, and prejudicial because it undercut his effort t o
prove Morales w as Bussie ‟s killer

. The court did not abuse it s discretion. The c ourt admitted Moore‟s testimony as a s tatement against penal interest under Fed. R. Evid. 804(b)(3 )

. T here was no error , because Reed‟s statement to Moore was “ sufficiently self

inculpatory” to bear the hallmark of reliability as required by the r ule, see United States
v. Moses , 148 F.3d 277, 281 (3d Cir. 1998), and was “ not simply [a] self

- serving attemp [ t ] to deflect criminal liability. ” United States v. Mussare , 405 F.3d 161, 168 (3d Cir. 2005)

. Eighth, Lewis claims the c ourt erred in admi tting “evidence of other crimes ” committed by Lewis , separate f rom thos e in the i ndictment , in contravention of Fed. R.
Ev id. 404 (b)

. Lewis points to three episodes of “other crimes” evidence : testimony by Trevor Smith about Lewis‟ s cocaine sales in the early 1990s , testimony by Karah Moore about Lewis‟ s robberies and fights as a child, and testimony by Karah Moore about an aborted drug deal arranged by Lewis. Even assuming all the challenged testimony relate s
to crimes outside the i ndictment, which the g overnment contests, we find any error under
Rule 404 (b) was harmless. Smith‟s testimony about Lewis‟ s activities in “th e early
1990s , ” Moore‟s testimony about Lewis‟ s “little kid robberies” and “little ki [ d ] fightin,” and Moore‟s testimony about an aborted drug deal, was each inconsequential in light of
the considerable evidence of Lewis‟ s drug

- trafficking activities with the Raymond12

Morales O rganization between 1993 and 2004

. See United States v. Isler , 429 F.3d 19, 26 (1st Cir. 2005) (holding the district court‟s allowance of testimony about the defendant‟s prior convictions, although un sanctioned by Rule 404, was harmles s error because the testimony was “inconsequential when evaluated against the balance of the prosecution‟s considerable evidence” of the crime charged ). Ninth, Lewis contends the c ourt abused its discretion in admitting expert testimony by DEA Agent David McNamara about the pattern of phone calls between
Lewis and his alleged co

- conspirators . Lewis makes two claims: first, McNamara lacked
the qualifications to be deemed an expert under Fed

. R

. Evid

. 702 ; second, McNamara‟s proposed area of expertise , phone usage patterns of drug

- traffickers , did not meet either
the reliability nor the “assist[ance to] the trier of fact” requirements of Rule 702

. 6 We
find both claims unavaili ng. There was ample evidence of McNamara‟s qualifications : he
had been a DEA agent f

or fifteen years, attended training programs o n the use of telephones by criminals, and analyzed hundreds of thousands of cell phone records over
the course of his career. See Betterbox Communications Ltd. V. B.B. Technologies, Inc. , 300 F.3d 325, 327

- 28 ( 3d Cir. 2002) (holding that one‟s practical experience can be the basis of his “specialized knowledge” for the purposes of rendering him an expert). With respect to reliability and assistance to the trier of fact , the c ourt did not abuse its
discretion in finding McNamara‟s proposed area of expertise satisfied those

6 In a third claim, Lewis contends Agent McNamara‟s expert testimony violated the Confrontat ion Clause. Because L ewis‟ s co - defendant, Mack Jones, initially raised the Confrontation Cla use point at trial and also makes the claim in his appeal, we address it in our companion case, United States v. Jones , No. 09

- 2955 (3d Cir. October 11 , 2011)

.13

requirements . “[T]he operations of narcotics dealers have repeatedly been found to be a suitable topic for expert testimony because they are not within the common knowledge of
the average juror. ” United States v. Watson , 260 F.3d 301 , 307 (3d Cir. 2001). Tenth, Lewis argues the c ourt erred in allowing Morales to testify about having asked Lewis, in 1992 or 1993, to shoot an individual named Walter. Lewis argues Morales‟ s testimony was inadmissi ble hearsay

. We disagree. The c ourt did not abuse its discretion in allowing the testimony under the co

- conspirator exception

. S ee Fed. R. Evid. 801(d)(2)(E). There was sufficient evidence to find Morales and Lewis entered into a conspiracy to shoot Walter in the early 1990s and Morales‟ s statement to be in furtherance of that conspiracy.
VI. Finally, Lewis requests a remand on sentencing contending his sentence was
unreasonable. The court sentenced Lewis to a term of l if e imprisonment plus 120 months

. Lewi s does not challenge the c ourt‟s calculation of his G uidelines range, 7 nor does he allege any procedural error during the sentencing hearing. His sole challenge is to the “reasonableness” of the sentence imposed , given that his co

- defendant, Ahmed Judge,

r eceived the same sentence but was argua bly more culpable. W e review for abuse of discretion, see Gall v. United States , 552 U.S. 38 , 51 (2007) ( “[T]he appellate court should [] consider the substantive reasonableness of the sentence imposed under an

7 The Presentence Investigation Report determined Lewis‟ s Total Offense Level to be 49 and his Criminal History Category to be 4. It recommended a Guideline d sentence of life imprisonment. At the sentencing hearing, the court adopted the PIR‟s Guidelines calcula tion over Lewis‟ s objection, and Lewis does not reassert the objection here.14

abuse

- of

- discretion standard

. ”), and assess the substantive reasonableness of the sentence in light of the factors set forth in 18 U.S.C. § 3553(a)

. S ee United States v. King , 454 F.3d 187, 194 (3d Cir. 2006).
We find t he c ourt‟s sentence reasonable in light of the § 3553 factors

. Regarding
the first factor , the “nature and circumstances of the offense, ” 18 U.S.C. § 3553(a)(1), Lewis‟ s crimes were grave. H is drug

- trafficking conspiracy was of major proportions (the
District J udge termed it the largest drug case h e ever presided over), and Lewis‟ s murder

was deliberate and premeditated

. Although Lewis claims it was unfair for him to receive the same sentence as the person who pulled the trigger, the c ourt found Lewis and Judge equally culpable with respect to Fusse ll‟s death . Regarding “the characteristics of the defendant,” id. § 3553(a)(1), the c ourt explained at sentencing it found “little hope” Lewis would assume a “conventional way of living.” He had taken two lives ( in addition

to murdering Fussell, Lewis had been convicted for aggravated manslaughter) , he worked steadily as a drug dealer throughout his adult life, and he showed no respect for the conventions of society. We find no substantiv e error in the c ourt‟s assessment of the
Section 3553 factors

. Its sen tence of life imprisonment plus 120 months was reasonable.
V II

. For the foregoing reasons, we will affirm the judgm ent of conviction and sentence.