NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 16-2778 _____________

UNITED STATES OF AMERICA,

v.

RICHARD BUSH,

Appellant

_____________

No. 16-3360 _____________

UNITED STATES OF AMERICA,

v.

MAYANK MISHRA,

Appellant _____________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2-12-cr-00092-001, 2-12-cr-00092-002) District Judge: Hon. Cathy Bissoon _____________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) April 12, 2018 Before: CHAGARES, VANASKIE, Circuit Judges, and BOLTON, District Judge.

(Opinion Filed: July 6, 2018) ____________

OPINION ____________

CHAGARES, Circuit Judge.

Richard Bush and Mayank Mishra appeal from their convictions after a joint jury

trial arising out of their participation in a conspiracy to sell heroin. Mishra also appeals

from his sentence. Bush was convicted of conspiracy to distribute one kilogram or more

of heroin, in violation of

; possession with intent to distribute 100 grams or

more of heroin, in violation of

(a)(1) and (b)(1)(B); possession of a firearm in

furtherance of a drug trafficking crime, in violation of

(c)(1)(A)(i); possession

of a firearm by a convicted felon, in violation of 18 U.S.C. 922(g); and possession of an

unregistered firearm, in violation of

(d). He was sentenced to 300 months

of imprisonment. Mishra was convicted of conspiracy to distribute heroin in violation of

, and sentenced to 151 months of imprisonment. They each raise numerous

challenges. As explained below, we find their arguments without merit, and so we will affirm.

I.

We write solely for the parties and therefore recite only the facts necessary to our

disposition. Through undercover agents and wiretaps, investigators determined that Bush

 The Honorable Susan R. Bolton, Senior United States District Judge for the District of Arizona, sitting by designation.  This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. 2 was a drug maker who was part of a larger heroin distribution network of gang members

in Pittsburgh. Bush procured his drug-making material (other than the heroin itself) from

Mishra. Mishra owned Rock America, a store that ostensibly sold concert “swag,” but whose

real profit came from the sale of stamp bags, diluents (cutting agents), and other drug

paraphernalia to Pittsburgh drug dealers. Mishra did not display or advertise these stamp

bags or diluents in his store, but instead kept them behind the counter, in a back room, or

at home. Bush placed monthly bulk orders for diluents and cases of distinctively marked

and colored stamp bags with Mishra. Investigators intercepted calls between Bush and

Mishra, in which they discussed Bush’s heroin recipe. Mishra would extend Bush credit

when he was short on cash, and permitted Bush to return unused stamp bags in exchange

for other stamp bags.

Investigators obtained a wiretap of the phone of Sherron Whitehead, a mid-level

street heroin distributor, who obtained his heroin from Bush. They then tapped Bush’s

cellphone and set up a pole camera overlooking Bush’s home. In these conversations,

Bush described his full-time work in his heroin-processing lab and how even breathing in

the fumes there made him high. Bush also repeatedly referenced his “dude,” “man,” or

“guy” who advanced the money to make purchases from Mishra, who warned him that he

thought Mishra’s shop had been raided, and with whom Bush coordinated the purchase of

distinctively marked stamp bags. Investigators determined that this “dude” was Willis

Wheeler. Through the pole camera footage, officers identified Wheeler, who would text

Bush that he was on his way over, arrive at Bush’s home carrying bags of materials, use a

remote in his car to open the garage door, and often stay for seven or more hours.

3 Conversations between Bush and his wife indicated that Wheeler was trusted to be in the

basement heroin lab even when Bush was not home.

Police executed simultaneous search warrants on Bush and Wheeler (as well as

their homes and cars) on March 14, 2012. Given the investigators’ belief that Wheeler

had in the past spotted their surveillance, they followed Wheeler’s car by airplane to

ascertain where he stopped before going to Bush’s. Wheeler led investigators to an

apartment at 500 Mills Avenue, where he stopped before continuing towards Bush’s, at

which point officers arrested him. The search of his car turned up 186 grams of 86%

pure heroin in his glove compartment; $28,000 in cash, rubber bands, bill-wraps for

thousand-dollar bills, and a loaded handgun were found at his home. After obtaining a

warrant, police searched the Mills Avenue apartment and found drug paraphernalia and a

locked safe containing approximately 760 grams of heroin.

During the simultaneous search of Bush’s home, police discovered Bush’s heroin

lab, guns, drug paraphernalia, and a large amount of heroin of varying purities (that is, at

different stages of the cutting or diluting process, in preparation for sale). Specifically,

officers discovered 287 grams of unbagged 43% pure heroin, 761 grams of unbagged

20.5% pure heroin, and nearly 8,900 stamp bags containing between 26% and 28% pure

heroin. Officers also found six unregistered firearms, including four handguns, a sawed-off

shotgun, and a rifle. After being read his rights under Miranda v. Arizona,

(1966), Bush waived them and confessed to having twelve bags of heroin in his

underwear, that everything in the house belonged to him, and that he kept the guns for

4 protection against people trying to kill him. Responding to a remark from one of the

officers, Bush stated: “I’m a criminal.” Appendix (“App.”) 1305-06.

Nearly a year later, on February 26, 2013, officers searched Rock America and

Mishra’s home. Officers found $907,000 in cash, 45 cases of stamp bags, as well as

diluents and other drug paraphernalia. More stamp bags, diluents, and paraphernalia

were found at Rock America and at Mishra’s home. These included many stamp bags

containing the same distinctive marking as those Bush had ordered from Mishra over the

phone, including several identical to those that had been seized from Bush’s house.

A superseding indictment was issued in March 2013 against Bush, Mishra, and

Wheeler. As relevant here, Count One charged all three with conspiracy to distribute one

kilogram or more of heroin from August 2011 to March 2012, in violation of

. Count Two charged Bush with possession with intent to distribute 100 grams or

more of heroin, in violation of

(a)(1) and (b)(1)(B). Count Four charged

Bush with possession of a firearm by a convicted felon, in violation of 18 U.S.C. 922(g).

Count Five charged Bush with possession of a firearm in furtherance of a drug trafficking

crime, in violation of

(c)(1)(A)(i). Count Six charged Bush with possession

of a sawed-off shotgun, in violation of

(d). The other counts were

against only Wheeler. All three defendants pleaded not guilty. Mishra was later indicted

on separate felony charges which remain pending in the District Court.

Mishra moved for a severance in April 2014, but the District Court denied that

motion and scheduled all three defendants to be tried jointly. Based on a numerous

motions by all parties, trial was continued without issue until June 2015. Wheeler then

5 sought a continuance of trial to December 2015, due to his counsel’s medical concerns.

Bush objected to this continuance, but the District Court found that it was necessary and

granted it. Wheeler’s counsel died suddenly in October 2015, prompting the District

Court to then sever Wheeler to be tried separately.1 Bush and Mishra’s joint trial began

in December 2015. The jury convicted Bush and Mishra on all counts, the District Court

sentenced them, and these timely appeals follow.2

II.

Bush and Mishra each bring separate challenges to their convictions. Mishra also

challenges his sentence. We will address each defendant’s arguments in turn.

A.

Bush raises the five following issues on appeal, that: (1) a six-month continuance

entered to accommodate co-defense counsel’s health troubles violated his speedy-trial

rights; (2) the Government’s use of audio-recordings in its opening statement prejudiced

him; (3) the Government’s description of the anti-personnel purpose of a sawed-off shotgun

was prejudicial; (4) the case agent’s testimony as to coded drug language was improper

opinion testimony by a lay witness made without personal knowledge; and (5) he is entitled

to a new trial because the evidence only supported finding him guilty of a crime that was

a variance from the indictment on the conspiracy charge. We will address each in turn.

1 Wheeler was convicted of all the counts he faced in May 2016. 2 The District Court had jurisdiction under

and we have appellate jurisdiction under

and

(a). 6 1.

First, Bush argues that the District Court erred in denying his motion to dismiss

for a violation of his right to a speedy trial, under both the Constitution and the Speedy

Trial Act,

. We review the District Court’s legal conclusions regarding

a speedy trial claim de novo, and its factual conclusions for clear error. United States v.

Rivera Const. Co.,

, 295 n.3 (3d Cir. 1988). We review a continuance

granted “after a proper application of the statute to established facts” for abuse of discretion.

The Speedy Trial Act requires that trial commence within seventy days of a defendant’s

initial appearance. See

(c)(1). However, certain periods of delay are

excluded from the computation of this time.

This includes “[a]ny period of delay

resulting from a continuance granted” where “the ends of justice served by taking such

action outweigh the best interest of the public and the defendant in a speedy trial.”

§ 3161(h)(7)(A). Moreover, “after defendants are joined for trial, ‘an exclusion applicable

to one defendant applies to all codefendants.’” United States v. Arbelaez,

(3d Cir. 1993) (quoting United States v. Novak,

(3d Cir. 1983)).

Bush contends that the District Court violated his speedy trial rights when it continued

the trial from June 8, 2015 to December 1, 2015. The District Court granted this continuance,

on the motion of then-co-defendant Wheeler and over Bush’s objection, so that Wheeler’s

retained counsel could receive necessary medical treatment. The District Court found that

a continuance for this reason served the ends of justice and continued the trial to December

2015, when Wheeler’s counsel believed he would be able to proceed. Bush argues that

this delay was unreasonable under the circumstances because the District Court did not

7 require sufficient documentation of Wheeler’s counsel’s medical condition, because there

was no guarantee Wheeler’s counsel would recover in time for a December trial, and because

he or Wheeler could have been severed from the case. We disagree. The District Court did

not abuse its discretion in continuing the trial to accommodate Wheeler’s counsel’s serious

medical needs. See United States v. Dignam,

(5th Cir. 2013). And, because

the continuance was a valid exclusion from the speedy trial clock for one co-defendant, it

was valid as to all co-defendants, including Bush. See Arbelaez,

.3

2.

Next, Bush argues that the District Court erred by permitting the Government to

play audio recordings of recorded phone calls during its opening statement. We review

the District Court’s application of the Federal Rules of Evidence for abuse of discretion.

United States v. Duka,

(3d Cir. 2011). Demonstrative exhibits may be

used in opening statements as long as the prosecution “avoids references to matters that

cannot be proved or would be inadmissible.” United States v. De Peri,

, 979

3 Bush raises the alternative argument that the entire delay between his March 2012 arrest and December 2015 trial violated his constitutional right to a speedy trial. The Supreme Court has articulated four factors to be considered in a constitutional speedy trial claim: the “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Barker v. Wingo,

(1972). Bush’s claim fails because although there was a 45-month delay, he or his co-defendants sought the continuances that caused the vast majority of this delay. The only one of these continuances to which Bush objected was the final six-month continuance from June to December 2015 due to Wheeler’s counsel’s medical issues. The Government was responsible for only three continuances totaling approximately two-and-a-half months. Bush also did not file a speedy trial motion until October 2015. Finally, Bush “neither suffered from a presumption of prejudice nor has he identified a specific occurrence of prejudice.” United States v. Claxton,

(3d Cir. 2014). Thus, a balancing of these factors demonstrates that his speedy trial claim is without merit. 8 (3d Cir. 1985). During the Government’s opening statement, it referred to and played clips

from eight recorded phone calls, all of which were eventually admitted as evidence. See

App. 312, 511-12. Bush does not challenge the admissibility of this evidence on appeal.

The District Court also instructed the jury that counsel’s arguments in opening statements

were not evidence. Because the phone calls were admissible, the District Court did not

abuse its discretion by permitting the Government to play the recordings for the jury as

part of its opening statement.

3.

Bush next argues that the Government committed misconduct by stating that the

purpose of Bush’s sawed-off shotgun was to kill. Bush failed to raise this argument

below, so we will review it for plain error. United States v. Poulson,

(3d Cir. 2017).4 In its opening statement, the Government showed Bush’s sawed-off

shotgun to the jury and argued that it had no sporting use but was only useful for killing

people. The Government’s firearms expert later testified consistently. Although he did

not object at trial, Bush now argues that the purpose of the shotgun was irrelevant to any

of the charges against him and that there was no evidence of violence during the course

of the conspiracy. He argues that the statement’s admission was plain error because these

statements inflamed the jury’s passions and prejudices. We disagree.

4 Under this standard, we will “grant relief only if we conclude that (1) there was an error, (2) the error was ‘clear or obvious,’ and (3) the error ‘affected the appellant’s substantial rights.’ If those three prongs are satisfied, we have ‘the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’” United States v. Stinson,

(3d Cir. 2013) (citations omitted) (quoting Puckett v. United States,

(2009)). 9 The Government introduced the sawed-off shotgun and accompanying expert

testimony as evidence that Bush possessed a firearm that was used in furtherance of a

drug trafficking crime, as required to prove a violation of

(c)(1). The

testimony that the sawed-off shotgun was only useful for killing humans, and not for

hunting, was relevant to show that it was likely used in connection with Bush’s drug

trafficking. This was corroborated by Bush’s own statements, introduced as evidence,

that he possessed guns because people were trying to kill him and that he once threatened

someone by putting a gun to that person’s head. In light of these statements, the

admission of this testimony about the purpose of a sawed-off shotgun would not

prejudice the jury by inflaming their passions in a way that would amount to plain error.

4.

Bush next argues that the District Court erred by permitting the Government’s

case agent, Allegheny County Sheriff’s Deputy Richard Barrett, to interpret coded

language in three recorded phone conversations without being qualified as an expert.

Bush argues that Barrett’s opinions about these three calls were not rationally based on

his perception or personal knowledge. Bush did not raise this specific Federal Rule of

Evidence 701 objection below, so we review for plain error. Cf. United States v. Iglesias,

(3d Cir. 2008).

Rule 701 permits lay witnesses to testify concerning their opinions to the extent

that those opinions are “rationally based on the witness’s perception,” are “helpful to

clearly understanding the witness’s testimony or to determining a fact in issue,” and are

“not based on scientific, technical, or other specialized knowledge within the scope of

10 Rule 702.” Fed. R. Evid. 701. We have held that “Rule 701 means that a witness is only

permitted to give her opinion or interpretation of an event when she has some personal

knowledge of that incident.” United States v. Fulton,

(3d Cir. 2016).

This evidence is admissible because it “has the effect of describing something that the

jurors could not otherwise experience for themselves by drawing upon the witness’s sensory

and experiential observations that were made as a first-hand witness to a particular event.”

(quoting United States v. Freeman,

, 597 (6th Cir. 2013)).

Deputy Barrett had sufficient personal knowledge to provide his testimony concerning

the three challenged phone calls due to his involvement in the surveillance and investigation

of the conspiracy and his review of the evidence and other investigation materials. Barrett

supervised surveillance of Bush and other co-conspirators, helped plan the surveillance

and arrest of Wheeler, and was present at Mishra’s arrest. Barrett also reviewed pole

camera footage, examined seized evidence such as stamp bags and diluents, studied lab

reports, and perused reports and evidence seized by others in the course of the investigation.

Additionally, he listened to and reviewed all of the wiretapped calls between the co-

conspirators. This was sufficient to establish Barrett’s personal knowledge. Bush cannot

show that the District Court plainly erred by permitting Barrett to offer this challenged

testimony under these circumstances.

5.

Finally, Bush argues that the jury’s verdict constituted an improper variance from

the indictment, which charged a single conspiracy, whereas he contends the proof at trial

showed only that he was part of multiple conspiracies. Bush never argued below that a

11 variance occurred, so we review for plain error. We have held that “[w]here a single

conspiracy is alleged in the indictment, there is a variance if the evidence at trial proves

only the existence of multiple conspiracies.” United States v. Perez,

(3d Cir. 2002) (quoting United States v. Kelly,

(3d Cir. 1989)). To

prevail on this claim, Bush must demonstrate both that there was such a variance, and

that one of his substantial rights were prejudiced by that variance.

Because whether

the evidence was sufficient to established a single conspiracy is a question of fact for the

jury, “[w]e will sustain the jury’s verdict if there is substantial evidence, viewed in the

light most favorable to the Government, to support a finding of a single conspiracy.”

We have reviewed the evidence presented to the jury and conclude that there was

sufficient evidence to support the jury’s finding that Bush was involved in a single conspiracy.

In determining whether there was a single conspiracy as opposed to multiple conspiracies,

we consider: (1) whether the conspirators’ shared a common goal; (2) whether the result

of the conspiracy would not continue without the continuous cooperation of the

conspirators; and (3) the extent to which there is overlap in the various dealings of the

conspiracy’s participants. See United States v. Kemp,

(3d Cir. 2007).

The evidence supports a finding that there was a single conspiracy that had the

common goal of selling heroin to profit its members, which included Bush, Wheeler,

Mishra, Whitehead, and others. The evidence was sufficient to support the Government’s

theory that the continuous cooperation of each of these members was critical to the

conspiracy’s success. Wheeler supplied the raw heroin, Mishra supplied the materials to

process and package that heroin, Bush processed and packaged it in his lab, and Whitehead

12 and other street-level distributors sold the heroin. The evidence established that Bush knew

and worked with all of these members of the conspiracy, and that these other members

knew of their counterparts’ roles and that they were part of a larger operation, even if

they did not know their counterparts’ names. This is sufficient to support the jury’s

conclusion that there was a single conspiracy. See Perez,

; United States

v. Padilla,

(3d Cir. 1992) (“To establish a single conspiracy, the prosecutor

need not prove that each defendant knew all the details, goals or other participants.”).

Additionally, even if we concluded that there was a variance, it would not warrant

reversal because Bush cannot show that he was prejudiced. A defendant is not prejudiced

by a variance if “the indictment sufficiently informs the defendant of the charges against

him so that he may prepare his defense and not be misled or surprised at trial,” and if it

does not place the defendant in danger of being “prosecuted a second time for the same

offense.” United States v. Daraio,

(3d Cir. 2006) (quoting United States

v. Schoenhut,

, 1021–22 (3d Cir. 1978)). Bush has not advanced any

argument that he was unable to prepare a defense or was surprised at trial. Nor has he shown

that the alleged variance places him in danger of a subsequent prosecution. Accordingly,

he has not shown that if there were a variance that he has been prejudiced by it.5

5 Further, because he was a member of each of the multiple conspiracies that he contends were established by the evidence at trial, the same evidence would still be admissible against him, and thus he was not prejudiced by the “possibility of evidence spillover.” Kemp,

. 13 B.

Mishra raises the five following issues on appeal, that: (1) the indictment against

him should be dismissed because he was only a supplier and the prosecution against him

was vindictive; (2) certain evidence should not have been admitted because it was seized

outside the scope of the alleged conspiracy; (3) the District Court improperly sanctioned

his lawyers and impeded his ability to present a fair defense by preventing him from

asking questions about the legality of the merchandise he sold; (4) the evidence was

insufficient to show that he was a participant in the conspiracy; and (5) the District Court

erred in calculating the amount of heroin for which he was responsible at sentencing. We

will address these arguments in turn.

Mishra’s first few arguments all revolve around his contention that because the

stamp bags, diluents, and other drug paraphernalia that he sold were legal to sell, he

cannot be liable as a co-conspirator even though he supplied those items to a drug

conspiracy. He argues that the District Court erred in not granting his motion to dismiss

the indictment on these grounds, that the District Court abused its discretion in limiting

his cross-examination on this issue, and that the evidence was insufficient to support his

conspiracy conviction. Because we disagree with Mishra’s position in this regard, we

will affirm these decisions of the District Court.

1.

Here, a review of the indictment demonstrates that, “assuming all of th[e] facts

[set forth therein] as true, a jury could find that the defendant committed the offense for

which he was charged.” United States v. Huet,

(3d Cir. 2012).

14 Mishra’s contentions that his conduct was legal goes to the sufficiency of the evidence

against him and not to the sufficiency of the indictment. Because “a pretrial motion to

dismiss an indictment is not a permissible vehicle for addressing the sufficiency of the

government’s evidence,” the District Court did not err in denying Mishra’s motion to

dismiss the indictment. United States v. DeLaurentis,

(3d Cir. 2000).6

2.

Mishra contends that the District Court erred when it entered, and subsequently

enforced, a pretrial order that precluded him from eliciting testimony from prosecution

witnesses about the legality of the stamp bags and diluents that he sold.7 We disagree.

The District Court found that cross-examination of Government witnesses on this topic

was irrelevant and prejudicial. It also found that the witnesses were not qualified as

experts to give the legal conclusions that Mishra’s counsel was attempting to elicit. The

District Court did not abuse its discretion in finding that the independent legality of the

items Mishra sold was not relevant to the charge against Mishra that he sold these items

to Bush for heroin production to further the goal of the conspiracy, which was to profit

from the sale of heroin. It properly determined that Mishra’s argument — that he could

not be convicted of conspiracy because the items he sold were not outlawed — risked

6 On appeal, Mishra also argues that the indictment should be dismissed because he was the target of selective and vindictive prosecution by the Government. Because he did not raise this argument in his pretrial motion, it is forfeited. See United States v. Salahuddin,

(3d Cir. 2014) (citing Fed. R. Crim. Pro. 12(b)(3)(A)). 7 Mishra also challenges the District Court’s sanctioning of his trial counsel for repeatedly violating this order. His counsel never appealed the sanctions order entered against them, so Mishra cannot raise that issue as part of his own appeal. 15 confusing the jury because it was an incorrect statement of the law. See Direct Sales Co.

v. United States,

(1943). Mishra was permitted to, and effectively

did, cross-examine the Government’s witnesses on a host of other issues. Thus, Mishra

has not shown that the District Court’s decision amounted to a denial of his ability to

mount an adequate defense. See United States v. Adams,

(3d Cir.

1985) (“A restriction will not constitute reversible error unless it is so severe as to

constitute a denial of the defendant’s right to confront witnesses against him and it is

prejudicial to substantial rights of the defendant.”).8

3.

We have held that “a ‘particularly deferential’ standard of review” is applied “to a

challenge to the sufficiency of evidence supporting a jury verdict.” United States v. Peppers,

(3d Cir. 2002) (quoting United States v. Cothran,

(3d Cir. 2002)). Under this standard, we will sustain the verdict if “‘any rational juror’

could have found the challenged elements beyond a reasonable doubt, viewing the evidence

in the manner that is most favorable to the government, neither reweighing evidence, nor

making an independent determination as to witnesses’ credibility.”

(quoting Cothran,

). To prove “a drug-trafficking conspiracy in violation of

,

8 In addition, even if this were error, it would be harmless, because Mishra’s attorney was permitted to elicit a statement from one prosecution witness that stamp bags could be used for lawful purposes and Mishra also took the stand himself and testified to his belief that his conduct was legal. Thus, he was given ample opportunity to present this theory to the jury, and we are convinced that it is highly probable that the jury would have convicted Mishra even if he had been allowed fully to cross-examine the Government witnesses to the extent he desired. See United States v. Casoni,

(3d Cir. 1991). 16 the government must establish: (1) a shared unity of purpose between the alleged

conspirators, (2) an intent to achieve a common goal, and (3) an agreement to work

together toward that goal.” United States v. Bailey,

(3d Cir. 2016).

Mishra’s main argument on this point is that one who sells legal goods cannot be

guilty of a criminal conspiracy involving those items. However, that is not a correct

statement of the law. It has long been established that the sale of otherwise legal items to

co-conspirators with the knowledge and intent that they would be put to illicit use is sufficient

to constitute participation in the conspiracy. See Direct Sales Co,

.

We have reviewed the evidence presented at trial, and it is sufficient to support the

jury’s conclusion that Mishra knowingly participated in the conspiracy and enjoyed more

than a simple buyer–seller relationship with Bush. This included evidence that Mishra

sold Bush stamp bags and diluents for as many as 14 years, on a standardized monthly

schedule, for payments of up to $5000. Mishra’s yearly revenue from these sales to Bush

far exceeded the annual revenue Mishra reported to the IRS for all of Rock America’s

annual sales from 2010 through 2012. This also included evidence that Mishra operated

Rock America as a one-stop shop for heroin dealers, that he concealed the stamp bags and

diluents behind the counter and in his storeroom, that he was concerned with how the

presence or rumors of law enforcement would affect his sales, and that he helped and offered

to help mix the diluents for Bush’s recipe. Taking this and the other evidence into

account, a reasonable juror could conclude that Mishra sold to Bush knowing of Bush’s

heroin sales and intending to further, so as to profit from, that venture. See Bailey,

. Because the jury’s verdict “does not ‘fall below the threshold of bare rationality,’”

17 it is sufficient, and we must uphold it. United States v. Caraballo-Rodriguez,

(3d Cir. 2013) (en banc) (quoting Coleman v. Johnson,

(2012)).

4.

Next, Mishra brings a challenge under Federal Rule of Evidence 404(b) to the

District Court’s admission of evidence seized at his house and from Rock America during

his arrest in February of 2013. Mishra failed to raise this argument below, so we will

review it for plain error. Poulson,

. Mishra argues that this evidence

seized in 2013 was inadmissible because it was outside the scope of the conspiracy,

which he contends ended when Bush was arrested in 2012. He contends that the cash and

paraphernalia seized was admitted without a showing that it was relevant or necessary to

the charged conspiracy. We disagree.

The District Court did not plainly err in the admission of this evidence because it

was intrinsic to showing Mishra’s involvement in the conspiracy. Other evidence showed

that Bush placed an order with Mishra for his distinctive stamp bags in February 2012,

but was arrested before he was able to retrieve that order. Some of the stamp bags seized

from Rock America during Mishra’s 2013 arrest had the same distinctive markings as the

ones Bush ordered. A reasonable juror could believe the Government’s theory that these

were the same bags Bush had ordered. As to the cash seized from Mishra’s home, he

admitted that that money originated with cash-paying Rock America customers; thus, the

jury could reasonably conclude that this money constituted the fruits of the charged

conspiracy. “Rule 404(b) excludes only extrinsic evidence, or evidence of acts that are

not the basis of the current prosecution. It does not exclude intrinsic evidence, which

18 either ‘directly proves’ or ‘facilitate[s]’ the charged offense.” United States v. Davis,

, 441 n. 5 (3d Cir. 2013) (quoting United States v. Green,

(3d Cir. 2010)). This evidence was relevant to directly proving Mishra’s involvement in

the charged conspiracy. Accordingly, it does not fall within the ambit of Rule 404(b),

and as such the District Court did not plainly err by admitting it.

5.

Finally, Mishra challenges the District Court’s calculation of his sentence. He

contends that it employed an arbitrary methodology in calculating that the conspiracy

involved up to ten kilograms of heroin, and then sentencing Mishra based on that amount.

We review the District Court’s factual findings as to quantity of drugs at sentencing for

clear error. United States v. Sau Hung Yeung,

(3d Cir. 2001). At

sentencing, the Government bears the burden of proving drug quantities by a preponderance

of the evidence. United States v. Self,

(3d Cir. 2012). “Where there is

no drug seizure or the amount seized does not reflect the scale of the offense,” the Guidelines

counsel the court to “approximate the quantity of the controlled substance.” United

States Sentencing Guidelines (“U.S.S.G.”) § 2D1.1 cmt. n.5. In a conspiracy case, this

calculation involves a consideration of the defendant’s relevant conduct, which includes

all acts of others taken within the scope, in furtherance of, and with a reasonable

foreseeable connection to the conspiracy. Id. § 1B1.3(a)(1)(B). And in a drug conspiracy

case, it includes “all quantities of contraband that were involved in transactions carried out

by other participants,” as long as they are within the scope of and have a foreseeable

connection to the conspiracy. Id. § 1B1.3(a)(1)(B) cmt. n.3(D).

19 Here, the District Court’s finding that Mishra was responsible for between three

and ten kilograms of heroin is soundly supported in the record. The District Court

arrived at this estimate by multiplying the amount of heroin contained in each individual

stamp bag recovered from Bush’s laboratory by the number of stamp bags Bush ordered

from Mishra each month to determine that the conspiracy processed approximately one

kilogram of heroin every month. The District Court then multiplied that by the seven

months over which the charged conspiracy lasted to determine that the amount of heroin

fell within the Guideline’s three to ten kilogram range for a base offense level of 32. The

District Court’s methodology was sound and was supported by a preponderance of the

evidence. See United States v. Paulino,

(3d Cir. 1993). Accordingly,

the District Court did not clearly err in finding Mishra responsible for between three and

ten kilograms of heroin and sentencing him under the resulting Guidelines’ range.

III.

For the foregoing reasons, we will affirm the judgment of the District Court.

20