United States of America v. Mario Rivera

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 09-3222 & 09-4415
___________
UNITED STATES OF AMERICA
v.
MARIO RIVERA,
Appellant at No. 09-3222
JULIAN JOSEPH,
Appellant at No. 09-4415
_______________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Criminal Nos. 08-cr-00041-006 & 08-cr-00041-011
(Honorable Harvey Bartle III)
______________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 10, 2011
Before: SCIRICA, BARRY and VANASKIE, Circuit Judges.
(Filed: January 25, 2011)
_________________
OPINION OF THE COURT
_________________
SCIRICA, Circuit Judge.
On March 11, 2008, a grand jury in the Eastern District of Pennsylvania returned a
114-count superseding indictment charging sixteen people, including Julian Joseph and

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Mario Rivera, with offenses including possession with intent to distribute cocaine base
(“crack cocaine”). Most of those charged entered into guilty plea agreements. Joseph
and Rivera were tried together, along with two other co-defendants. On April 8, 2009, a
jury convicted Joseph of two counts of possession with the intent to distribute crack
cocaine on October 20, 2007, and October 26, 2007, and convicted Rivera of one count
of possession with intent to distribute five or more grams of crack cocaine on October 19,
2007.1 The District Court sentenced Joseph to twenty-one months’ incarceration, three
years of supervised release, and a special assessment of two hundred dollars, and
sentenced Rivera to sixty months’ imprisonment, four years of supervised release, and a
special assessment of one hundred dollars. Joseph and Rivera appeal, contending the
evidence was insufficient to support their convictions.2 We will affirm.3
1 The grand jury had charged Joseph with eight counts of possession with intent to
distribute crack cocaine and four counts of possession with intent to distribute five grams
or more of crack cocaine in violation of 21 U.S.C. § 841(a)(1). Rivera was charged with
six counts of possession with intent to distribute crack cocaine and one count of
possession with intent to distribute five grams or more of crack cocaine in violation of 21
U.S.C. § 841(a)(1).
2 At the close of the government’s case, Joseph and Rivera each made an oral motion for
judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure, arguing
insufficiency of the evidence. Fed. R. Crim. P. 29. These motions were denied. After
trial, Joseph renewed his motion for judgment of acquittal under Rule 29, which the
Court denied. Because Joseph properly renewed his challenge to the sufficiency of
evidence, we evaluate Joseph’s “convictions in order to ascertain whether, when viewing
the evidence presented at trial in a light most favorable to the government, any rational
trier of fact could have found the essential elements of the offenses charged” beyond a
reasonable doubt, United States v. Anderson, 108 F.3d 478, 480 (3d Cir. 1997), as
discussed infra. Conversely, Rivera did not “renew[] the motion for judgment of
acquittal at the close of the evidence or by filing a timely post-verdict motion,” United
States v. Wright-Barker, 784 F.2d 161, 170 (3d Cir. 1986), superseded on other grounds

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I.
The government presented considerable evidence at trial. Two witnesses were
central to the government’s case, Sean Rogers, and his common-law wife, Anna Baez.
Rogers, with the assistance of Baez, managed a drug trafficking operation that sold crack
cocaine in wholesale quantities to street dealers in Easton, Pennsylvania, and elsewhere,
during the year prior to their arrests in January, 2008. In October and November 2007,
pursuant to a court-ordered wiretap of Rogers’ cellular telephone, investigators
intercepted and recorded more than 1,300 calls in which Rogers or Baez made
arrangements to purchase powder cocaine and crack cocaine from a New York supplier
and sell crack cocaine to customers for street-level resale. Investigators also made
controlled purchases of crack cocaine from Rogers and conducted surveillance of Rogers
and Baez during multiple drug sales. Many of these transactions were videotaped.
by statute, United States v. Martinez-Hidalgo, 993 F.2d 1052 (3d Cir. 1993), and instead
moved for a new trial under Rule 33 of the Federal Rules of Criminal Procedure. Rivera
did not properly preserve the issue of evidentiary sufficiency of his conviction for appeal
as a Rule 33 motion is “an inappropriate means of raising a challenge to the sufficiency
of the evidence . . . .” Wright-Barker, 784 F.2d at 171 n.9. “Accordingly, the alleged
insufficiency of the evidence with respect to the essential elements of the offense must
constitute plain error in order to warrant reversal.” Anderson, 108 F.3d at 480; see
United States v. Barel, 939 F.2d 26, 37 (3d Cir. 1991). However, because the
government did not make this argument in its brief, because Rivera argued after the jury
verdict that the evidence was insufficient to support conviction—albeit improperly styled
as a Rule 33 motion—and because the evidence supports the conviction under either
standard, we will examine the record as a whole “to see if the government produced
substantial evidence sufficient to prove th[e] element[s] of its case beyond a reasonable
doubt.” Barel, 939 F.2d at 37.
3 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under
28 U.S.C. § 1291.

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Rogers and Baez took telephone orders for, and delivered to customers, crack
cocaine in amounts from one-eighth of an ounce (3.5 grams) to one ounce for the purpose
of repackaging and resale in smaller amounts. Rogers distributed at least 27.5 kilograms
of crack cocaine—approximately five hundred grams a week—during the one-year
period. A search of Rogers’ residence on January 23, 2008, uncovered five hundred
grams of powder cocaine and one hundred grams of crack cocaine.
Rogers and Baez pleaded guilty and testified for the government as cooperating
witnesses. They testified Rogers sold crack cocaine to Joseph and Rivera for
redistribution. After the presentation of this and other evidence, including circumstantial
evidence consisting of telephone records, wiretapped conversations, and video
recordings, the jury returned guilty verdicts convicting Joseph and Rivera.4
II.
When reviewing whether a jury verdict is based on legally sufficient evidence, we
view the evidence in the light most favorable to the government and must sustain the
verdict “if any rational trier of fact could have found the essential elements of the offense
beyond a reasonable doubt.” United States v. Gibbs, 190 F.3d 188, 197 (3d Cir. 1999);
see United States v. Cunningham, 517 F.3d 175, 177 (3d Cir. 2008). In order to
determine whether there was sufficient evidence to uphold the convictions, we examine
the “totality of the evidence, both direct and circumstantial, and must credit all available
4 Appellants were also acquitted of numerous counts. See supra note 1 and
accompanying text.

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inferences in favor of the government.” United States v. Sparrow, 371 F.3d 851, 852 (3d
Cir. 2004) (citation and internal quotation marks omitted). The standard is “particularly
deferential,” United States v. Cothran, 286 F.3d 173, 175 (3d Cir. 2002) (citation and
internal quotation marks omitted), when reviewing for sufficiency of evidence, and we do
not reweigh the evidence or reevaluate the credibility of witnesses. United States v.
Jones, 566 F.3d 353, 361 (3d Cir. 2009). Accordingly, “a claim of insufficiency of the
evidence places a very heavy burden on an appellant[,]” United States v. Dent, 149 F.3d
180, 187 (3d Cir. 1998) (citation and internal quotation marks omitted), and a “finding of
insufficiency should be confined to cases where the prosecution’s failure is clear.”
United States v. Smith, 294 F.3d 473, 477 (3d Cir. 2002) (citation and internal quotation
marks omitted). We will consider Joseph’s and Rivera’s appeals seriatim.
III.
In order to obtain convictions on the counts charged against Joseph, the
Government had to prove beyond a reasonable doubt that Joseph knowingly or
intentionally possessed crack cocaine with the intent to distribute. See United States v.
Johnson, 302 F.3d 139, 149 (3d Cir. 2002) (citing 21 U.S.C. § 841(a)(1)). The evidence
presented against Joseph included the following: (1) testimony by cooperating
government witnesses Rogers and Baez; (2) testimony by investigating agents; and (3)
circumstantial evidence, including wiretaps, demonstrating Joseph’s various purchases of
crack cocaine with the intent to distribute.

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On appeal, Joseph contends Rogers’ testimony was insufficient to support the
conviction because Rogers provided inconsistent testimony with respect to whether he
sold crack cocaine exclusively and contradicted himself both with respect to the
frequency with which, and the quantity of crack cocaine, he sold to Joseph. Joseph
asserts Rogers’ testimony that he sold crack cocaine exclusively is “wrought with
implausibility” because Rogers acknowledged selling marijuana “once or twice” to one
customer5 during the time period at issue and because Rogers had “numerous convictions
for selling marijuana” in previous years. Additionally, Joseph maintains Rogers’
testimony regarding when and how much crack cocaine he sold to Joseph conflicted with
statements he made before the trial.
There is “no need for this Court to reconcile the inconsistencies, because they
relate to witness credibility, an area peculiarly within the jury’s domain.” Cothran, 286
F.3d at 176 (citation and internal quotation marks omitted). We need only examine the
trial record to establish there is minimum evidentiary support for a credibility
determination, and we presume the jury resolved any conflicting inferences “in favor of
the prosecution, and must defer to that resolution.” McDaniel v. Brown, ---U.S.----, 130
S. Ct. 665, 673 (2010) (citation and internal quotation marks omitted). Rogers testified
that during the identified period he only sold crack cocaine, his relationship with Joseph
was not social but was limited to the sale of crack cocaine, and Joseph was a regular
5 Rogers acknowledged selling marijuana to Michael Clarence Curry, a fugitive from
justice at the time of trial. He denied having sold marijuana to Joseph or the other co-

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customer. Baez provided similar testimony, and Clifford Fiedler, a Special Agent with
the Federal Bureau of Investigation who participated in the investigation of Rogers,
testified Rogers purchased marijuana for personal use and was, to his knowledge, not
selling marijuana. There was more than sufficient evidence upon which the jury could
rely to convict Joseph, and we defer to the jury’s assessment of Rogers’ testimonial
credibility as the testimony was not so unbelievable or inconsistent a rational juror could
not deem it credible.6
Joseph further asserts that circumstantial evidence resulting from the search of his
home as well as Baez’s testimony concerning deliveries to Joseph “fails to corroborate or
cure Rogers’ testimony.” Joseph argues the “consent search of [a]ppellant’s home
yielded no crack or items consistent with its manufacturing or sale, but a blunt used to
smoke marijuana, consistent with [a]ppellant’s testimony[,]” and Baez “never witnessed a
narcotics transaction take place between Rogers and [a]ppellant.”7
defendants.
6 Joseph also maintains Rogers is “unworthy of belief,” and “lack[s] the capacity for
reason that is necessary for a jury to rely on,” because, among other things, Rogers filed
allegations accusing the District Court and Assistant United States Attorney of criminal
behavior and threatened to file criminal charges against them. Further, Joseph asserts the
credibility of his testimony “that his dealings with Rogers were limited to marijuana” is
enhanced because it is “consistent with Agent Fielder’s extensive testimony referencing
Rogers’ involvement in marijuana trafficking.” But Fielder, as previously discussed,
testified Rogers purchased marijuana for personal use and was not selling marijuana. In
any event, for the reasons identified, these claims are unpersuasive, and we will not
disturb the jury’s assessment of the witnesses’ credibility, including Joseph’s.
7 Joseph testified he only purchased marijuana from Rogers for personal use.

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The government’s proof may take the form of circumstantial as well as direct
evidence. United States v. Johnson, 302 F.3d 139, 149 (3d Cir. 2002). The evidence
presented, in addition to that already discussed,8 included telephone records establishing
788 contacts over a period of several months between Rogers’ phone and Joseph’s phone,
and numerous wiretapped telephone conversations of certain of these contacts including
recordings from October 20, 2007, and October 26, 2007, in which Rogers and Joseph
arranged deliveries and amounts for those days and addressed resale.9 Rogers testified
Joseph purchased two “eightballs”10 of crack cocaine on each date; the prosecution
presented evidence that purchases in these quantities is consistent with the intent to
repackage for resale and distribute crack cocaine. Rogers was videotaped arriving at
Joseph’s residence on each occasion. Moreover, although Baez did not testify as to
having directly witnessed an actual transaction, she testified she: assisted Rogers in the
sale of only crack cocaine, not marijuana, and to her knowledge Rogers never sold
marijuana in Easton, although he had before they moved to Easton from New York in
2004; received and transferred phone calls from Joseph to Rogers; waited in the car on
approximately twelve occasions while Rogers made deliveries inside Joseph’s home; and
further testified she and Rogers had only a business, not social, relationship with Joseph.
8 We have held that even “uncorroborated accomplice testimony may constitutionally
provide the exclusive basis for a criminal conviction.” United States v. De Larosa, 450
F.2d 1057, 1060 (3d Cir. 1971).
9 Rogers testified he had never seen Joseph smoke crack cocaine and Joseph testified he
did not purchase crack cocaine for personal use.
10 One “eightball” is one-eighth of an ounce, or 3.5 grams, of crack cocaine.

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Even if we do not consider the items found during the search of Joseph’s residence
on March 12, 2008, the day of his arrest, a reasonable jury could infer from the evidence
presented that Joseph possessed crack cocaine with the intent to distribute on October 20,
2007, and October 26, 2007. We conclude the evidence, viewed in the light most
favorable to the prosecution, was sufficient to support Joseph’s convictions. It is
immaterial that the evidence may also permit a “less sinister conclusion . . . .” Dent, 149
F.3d at 188. “To sustain the jury’s verdict, the evidence does not need to be inconsistent
with every conclusion save that of guilt.” Id. (citation and internal quotation marks
omitted). Accordingly, because we find the jury’s verdict to be supported by sufficient
evidence, we hold the District Court properly denied Joseph’s motion for acquittal.
IV.
On appeal, Rivera argues only the evidence was insufficient to support his
conviction because the government submitted no scientific evidence or expert testimony
that the substance Rivera possessed on October 19, 2007, was actually crack cocaine.
Rivera maintains the government was required to adduce evidence establishing the
“chemical composition of the substance” but failed to “call a chemist or any other witness
that tested the purported cocaine.”
“So long as the government produces sufficient evidence, direct or circumstantial,
from which the jury is able to identify the substance beyond a reasonable doubt, the lack
of scientific evidence is not objectionable.” Griffin v. Spratt, 969 F.2d 16, 22 n.2 (3d Cir.
1992) (quoting United States v. Schrock, 855 F.2d 327, 334 (6th Cir. 1988)). “Such

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evidence can include lay experience based on familiarity through prior use, trading, or
law enforcement; a high sales price; on-the-scene remarks by a conspirator identifying
the substance as a drug; and behavior characteristic of sales and use such as testing,
weighing, cutting and peculiar ingestion.” United States v. Harrell, 737 F.2d 971, 978
(11th Cir. 1984). The evidence presented against Rivera was substantially similar to that
presented against Joseph, and included Rogers’ testimony that his relationship with
Rivera was limited to the sale of eightballs of crack cocaine and that Rivera was a regular
customer of eightball quantities of crack cocaine. Baez testified she accompanied Rogers
on a number of occasions on which he sold eightballs of crack cocaine to Rivera, and
Oliver Sims, an Easton drug dealer, testified to having purchased eightballs of crack
cocaine from Rivera for a one-month period. Telephone records established more than
1,100 contacts over a period of several months between Rogers’ phone and Rivera’s
phone. A number of these contacts were wiretapped, including recorded telephone
conversations from October 19, 2007, the date of the offense charged in the count of
conviction. On this date, Rivera and Rogers agreed to rendezvous “by the blinking light
on Center Street in Easton,” and spoke six times between 6:10 P.M. and 6:48 P.M. In
one call, Rivera said “I want three all together.” Rogers testified this referred to three
eightballs—10.5 grams—of crack cocaine, which he then sold to Rivera. Crediting all
inferences in favor of the government, we conclude the government produced sufficient
cumulative circumstantial evidence demonstrating the identity of the substance for a

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reasonable jury to convict Rivera of possession with intent to distribute five or more
grams of crack cocaine on October 19, 2007.
V.
For the foregoing reasons, we will affirm the judgments of conviction and
sentence.

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