NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 08

- 4648

_____________
UNITED STATES OF AMERICA

v. SAMUEL FREEMAN, a/k/a SAM,

a/k/a FREEZE

______________ On Appeal from the United States Dist rict Court for the Eastern District of Pennsylvania (D.C. Crim. No s . 2

- 06

- cr - 00205

- 003 and 2

- 06

- cr - 00207

- 001 ) District Judge: Hon. Lawrence F. Stengel

_______________ Submitted Under Third Circuit LAR 34.1(a)

November 9, 2010 Before: McKEE, Chief Judg e , SLOVITER, and COWEN, Circuit Judges

(Filed: December 30, 2010 )

_______________
OPINIONSLOVITER, Circuit Judge

.

Samuel Freeman appeals from his convictions challenging the sufficiency of the evidence. We will affirm.
I.
B ecause we write primar ily for the parties, we discuss the facts only to the extent necessary f

or disposition of this appeal. Freeman was charged in a thirty

- three count indictment with eight co

- defendants. Relevant to this appeal, one count charged all nine defendants with con spiracy to distribute fifty grams or more of cocaine base (“crack”), and other c ounts charged Freeman with use of a communication facility, namely a telephone, in furtherance of a drug trafficking offense , and distribution of crack cocaine

. 1 Freeman and d efendant coconspirator Zephaniah Burrows were the only two d efendants to proceed to trial. Over the course of the thirteen

- day trial, the Government presented several witnesses, including Freeman‟s coconspirators and law enforcement agents, corroborated
b y physical evidence and several (lawfully intercepted) telephone conversations between
Freeman and his coconspirators relating to the distribution of crack. T he facts adduced at trial established that Freeman, from at least January 2002 until April 2006, “controlled a small but efficient crack distribution organization [in Philadelphia], obtaining powder cocaine on a steady basis, cooking it into [crack] in one of several locations . . . and

1 Freeman does not challenge his convictions for distribution of crack in violation of 21 U.S.C. § 841(a)(1). The District Court also imposed con current sentences of 360 months impr isonment for these offenses.distributing it both „wholesale‟ (selling „weight‟) and „retail‟ (selling to users . . . ).”

Appell ee‟s Br. at 9. Freeman‟s coconspirators testified that he “fronted” crack to them on several occasions, to wit, providing drugs without requiring immediate payment and waiting until they had sold the drugs to their custom ers. App. at 1915. Moreover, witnesses testified that Freeman communicated with the other members of the conspiracy in code regarding drug quantity and quality, locations, a nd dates. At least one coconspirator testified that she allowed Freeman and his associates to use her home to cook the powder base in to crack, who often left small amounts of drugs or cash for her . Others testified that Freeman taught them how to cook the crack and run tests to ens ure the quality of the supply, and still others testi fied that Freeman directed them to make deliveries of cocai ne and return the profit . As one coconspirator put it, “I was working for [Freeman], then I was selling the stuff that he was giving me.” App. at 1433. Another member of the conspiracy described his relationship with Freeman as follows: “I was playing the middle

man . . . w hen you‟re selling drugs out there . . . you don‟t want the . . . customer to see the big guy [referring to Freeman] who you‟re buying the coke off of.” App. at 1964. The jur y found Freeman guilty on the conspiracy charge and several counts of using a communication facility in furtherance of a drug

- trafficking offense. Thereafter, the District Court sentenced Freeman to 360 months imprisonment on the conspiracy and distributi on charges to run concurrently with each other as well as forty

- eight months onthe communication facility charg es to run concurrently with the conspiracy and

distribution sentences

. Freeman timely appeals. 2
II. Freeman‟s primary claim is that the eviden ce was insufficient to convict him of conspiracy to distribute cocaine base. 3 In so arguing, Freeman has a “very heavy burden.” United States v. Coyle , 63 F.3d 1239, 1243 (3d Cir. 1995). Our review of whether there was substantial evidence from which th e jury could have found Freeman guilty of conspiracy is plenary, but “highly deferential.” United States v. Bornman , 559 F.3d 150, 152 (3d Cir. 2009) (quotation omitted). We view the evidence in the light most favorable to the Government and must sustain the jury‟s verdict “if there is substantial evidence from which any rational trier of fact could find guilt beyond a reasonable doubt.” 4 United States v. Iglesias , 535 F.3d 150, 155 (3d Cir. 2008) (quotation omitted).

2 The District Court had jurisdic tion under 18 U.S.C. § 3231. We have appe llate jurisdiction pursuant to 2 8 U.S.C. § 1291.

3 The Government has filed a Statement regarding the Pro Se b rief filed by Appellant requesting that this court not consider issues in Pro Se Appellant‟s brief addit ional to those raised in his counsel‟s brief. Appellant responded that this court‟s order did not limit the issues that could be addressed. Although that is the fact, Appellant was aware that it is this court‟s practice not to accept pro se briefs when c ounsel has filed a brief except in extraordinary circumstances. See 3d Cir. R. 31.3 (2010) (“parties represented by counsel [who has not filed an Anders motion to withdraw ] may not file a brief pro se”). We do not wish to engage in further discussion of this issue. The Government‟s Statement is noted.

4 The Government argues that because Freeman alters the basis for his challenge on the sufficiency of the evidence before this court, the even more stringent plain error standard of review applies. We agr ee with the Government that, under either standard, Freeman‟s appeal fails. Thus, we will employ the less stringent of the two without deciding whetherThe Government may satisfy its burd en through the introduction of circumstantial

evidence. Id. at 156.
T o prove a conspiracy under 21 U.S.C. § 846, the Government must establish: (1) unity of purpose between the alleged conspirators; (2) intent to achieve a common goal; and (3) an agreeme nt to work together toward that goal. United States v. Gibbs , 190 F.3d 188, 197 (3d Cir. 1999) . The Government “need not prove that each defendant knew all of the conspiracy‟s details, goals, or other participants.” Id . The Government need only show th at Freeman conspired with “someone

- anyone.” United States v. Pressler , 2 56 F.3d 144, 149 (3d Cir. 2001) (quotation omitted).
F reeman argues that he had a mere buyer

- seller relationship with the other charged conspirators with whom he was only “loosely a ssociated.” Appellant‟s Br. at 25. In Gibbs , this court explained that a simple buyer

- seller relationship, without any prior or contemporaneous understanding beyond the sales agreement itself, does not establish an agreement to conspire. 190 F.3d at 197 . However, this court also explained that “even an occasional supplier [or buyer for redistribution] can be shown to be a member of the conspiracy by evidence, direct or inferential, of knowledge that . . . he was part of a larger operation.” Id. at 198 (quotation omitted). Fac tors bearing on whether a buyer and seller had an agreement necessary to establish a conspiracy i nclude: “the length of affiliation between the defendant and the conspiracy; whether there is an established method of payment; the ex tent to which transactions are standardized; and whether there is a Freeman‟s sufficiency of the evidence challenge befor e the District Court encompassed the argument pres ented here.demonstrated level of mutual trust.” Id . at 199. In addition, courts look to whether the

transactions involve a large amount of drugs and whether the buyer purchases drugs on credit. Id

. at 199

- 200. The evidence presented at trial taken in the light most favorable to the Government allowed a rational jury to conclude beyond a reasonable doubt that Freeman shared the same goal (i.e., distributing crack for profit) as the other conspirato rs. In Iglesias , this court held that the facts established a conspiracy where the defendant

- seller had sold drugs to a single buyer on credit on at least two occasions, awaiting payment until after the purchaser sold the drugs to his customers. 535 F.3d at 156. The level of mutual trust was further demonstrated by the fact that the defendant invited the buyer into his apartment with drugs in plain view. Id. The evidence presented by the Government in Freeman‟s case far exceeds that set forth in Igle sias . Contrary to Iglesias , where only two of the Gibbs factors were present, here, almost every factor is present: “the participants cooperated in the sale of large quantities of crack cocaine for years, and repeatedly exhibited mutual trust and organize d practices.” Appellee‟s Br. at 36. Freeman sold drugs on credit to coconspirators on several occasions, holding a mutual stake in the resale. He directed others to deliver drugs and money on his behalf, and taught others how to ensure the quality of th e cocaine for successful resale. Freeman was engaged in the buying and selling of cocaine base for at least four years and was much more than “loosely associated” with the other members of the conspiracy, as evidenced by the detailed code they developed t o communicate. Even if the evidence did not establish that Freeman was the leader, it was certainlysufficient to establish his knowledge of the larger operation and that an agreement existed

between Freeman and at least one other person to distribute cra ck for profit. Because there was sufficient evidence to sustain the finding of conspiracy, and Freeman‟s participation therein, Freeman‟s second argument must fail. The telephone calls between Freeman and his coconspirators, admitted by Freeman‟s counse l to be “largely drug

- contented,” Supp. App. 116, furthered the charged conspiracy “in one way
or another , ” Appellee‟s Br. at 38. These counts were properly sent to the jury.
III. For the foregoing reasons, we will affirm the judgment of the Distric t Court.