NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 21-2419 _____________

UNITED STATES OF AMERICA

v.

MICHAEL RINALDI, Appellant ______________

On Appeal from the United States District Court for the Middle District of Pennsylvania No. 3-18-cr-00279-002 District Court Judge: Honorable Robert D. Mariani ______________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on September 20, 2022

Before: CHAGARES, Chief Judge, McKEE, and PORTER, Circuit Judges

(Opinion filed: April 21, 2023)

_______________________

OPINION _______________________

McKEE, Circuit Judge.

 Judge McKee assumed senior status on October 21, 2022.  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Michael Rinaldi appeals his conviction and the sentence following his conviction

for conspiracy to traffic heroin. For the following reasons, we will affirm.1

I.2 A. Sufficiency of the Evidence

Rinaldi argues that the evidence presented at trial was insufficient to sustain his

conspiracy conviction. In reviewing a challenge to the sufficiency of evidence supporting

a jury verdict, we apply a “‘particularly deferential’ standard of review.”3 “[W]e will

affirm 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. . . .’”4

Rinaldi cannot meet this high bar. The evidence presented included extensive

testimony from Rinaldi’s co-conspirators, testimony from DEA agents, and recorded

conversations—all of which, when viewed in the light most favorable to the government,

would allow a rational juror to find beyond a reasonable doubt that Rinaldi conspired to

traffic heroin.

1 The District Court had jurisdiction under

. We have jurisdiction under

. 2 In addition to the arguments mentioned below, Rinaldi also argues that the District Court erred in closing the courtroom during jury selection. The contention is specious and does not merit discussion. The trial judge made a factual determination, based on his own observations, that the courtroom had been open. He emphasized that he had made no statement or order to close the courtroom. Moreover, the judge had been in the courtroom during the jury selection process and had personally witnessed non-prospective jurors coming and going. 3 United States v. Gonzalez,

(3d Cir. 2018) (citing United States v. Peppers,

(3d Cir. 2002)). 4

(citing United States v. Cothran,

(3d Cir. 2002)).

2 B. The Jury Instructions

Rinaldi further contends that the District Court erred by giving supplemental

instructions on the conspiracy count during jury during deliberations.

The Court answered the jury’s questions on the conspiracy count and referred the

jury to the relevant portions of the original instructions. Rinaldi fails to identify any legal

flaw in these instructions, and we find none. Furthermore, the District Court took its

instructions almost verbatim from the Third Circuit Model Instruction 6.18.371C.5

C. The Sentence

Rinaldi also argues that the District Court erred by basing his sentence on

acquitted conduct. The argument is also frivolous as he was convicted on all counts.6

Moreover, the Supreme Court has held “that a sentencing court may consider conduct of

which a defendant has been acquitted.”7

D. The District Court’s Evaluation of Evidence at Sentencing

5 See Third Circuit Model Instruction 6.18.371C. 6 In Count 1, Rinaldi was charged with conspiracy to distribute and possess with intent to distribute controlled substances. The jury addressed Count 1 in its answer to Interrogatory 1 and only found Rinaldi guilty with respect to heroin, but not the three other controlled substances listed on the verdict sheet. Rinaldi ostensibly argues that he was acquitted with respect to these three substances. Rinaldi misunderstands the law. He was convicted of conspiracy, which does not require that he be found guilty of every alleged substantive offense that could be a part of the conspiracy. “[T]he crime of conspiracy is [a] separate and distinct [offense] from the related substantive offense.” United States v. Rigas,

(3d Cir. 2010) (en banc) (citing United States v. Dansker,

(3d Cir. 1976) (alteration in original). “Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes.”

(citing Braverman v. United States,

(1942)) (emphasis added). 7 United States v. Watts,

(1997).

3 Rinaldi asserts that the District Court erred by failing to review the record and

independently apply the preponderance of the evidence standard in calculating his

sentence. “‘[W]e review the District Court's interpretation of the Sentencing Guidelines

de novo,’ its ‘findings of fact for clear error[,]’ and its ‘application of the Guidelines to

facts for abuse of discretion.’”8

To the extent that this assertion can be understood, it is clearly meritless. As noted

above, the defendant was convicted on all counts. The trial court did not deviate from that

verdict in reaching any conclusion underlying the sentence and Rinaldi’s suggestion to

the contrary is frivolous. There was no clear error.

E. The Sentencing Calculation

Finally, Rinaldi argues that the District Court erred in applying a two-level

enhancement for obstruction of justice pursuant to United States Sentencing Guidelines §

3C1.1. We review the District Court’s application of an enhancement under a deferential

abuse-of-discretion standard.9

Rinaldi argues that his actions were not willfully obstructive. However, after he

revealed the identity of a confidential source in an affidavit, that source refused to testify

at trial. Commentary on § 3C1.1 explicitly notes that “threatening, intimidating, or

otherwise unlawfully influencing a . . . witness” amounts to obstruction of justice.10 The

8 United States v. Metro,

(3d Cir. 2018) (citing United States v. Kluger,

) (3d Cir. 2013) (alterations in original). 9 Gall v. United States,

(2007). 10 U.S.S.G. § 3C1.1.

4 District Court, therefore, did not abuse its discretion by inferring that the sudden

recalcitrance of the confidential source was something other than a coincidence.

II.

For the reasons set forth above, we will affirm the District Court.

5