US v. Earl Fuller, Jr., No. 12-4050 (4th Cir. 2012)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4050 UNITED STATES OF AMERICA, Plaintiff Appellee, v. EARL R. FULLER, JR., Defendant Appellant. No. 12-4095 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID A. WHEELER, a/k/a Sampson, Defendant - Appellant. No. 12-4110 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SAMUEL LLOYD, a/k/a Sammy, Defendant - Appellant. Appeals from the United States District Court for the Eastern District of Virginia, at Norfolk. Mark S. Davis, District Judge. (2:11-cr-00036-MSD-FBS-6; 2:11-cr-00036-MSD-FBS-3; 2:11cr-00036-MSD-FBS-1) Submitted: November 1, 2012 Decided: December 7, 2012 Before DUNCAN and DAVIS, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Patricia Palmer Nagel, THE LAW OFFICES OF PATRICIA PALMER NAGEL, PLC, Williamsburg, Virginia, for Appellant Earl R. Fuller, Jr.; Jason Alan Dunn, JONES, JONES & DUNN, PLC, Chesapeake, Virginia, for Appellant David A. Wheeler; Lance C. Hamm, LANCE C. HAMM, Houston, Texas, for Appellant Samuel Lloyd. Neil H. MacBride, United States Attorney, Alexandria, Virginia, Laura M. Everhart, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. - 2 - PER CURIAM: Following a jury trial in the United States District Court for the Eastern District of Virginia, the appellants, Samuel Lloyd, David Wheeler, and Earl Fuller, Jr., were convicted of conspiracy to distribute cocaine offenses. distribute On First, and appeal, numerous fronts. and to possess marijuana, they with and challenge the numerous their intent to substantive convictions on We affirm. Fuller argues that the district court erred in failing to grant his motion to sever his case from that of his codefendants. We review a district court s decision to deny a motion to sever for an abuse of discretion. Singh, 518 F.3d 236, 255 (4th Cir. 2008). United States v. While severance of trials for defendants named in the same indictment is permitted if joinder appears to prejudice a defendant, Fed. R. Crim. P. 14, joint trials of defendants who are indicted together are preferred. Zafiro v. United States, 506 U.S. 534, 537 (1993). In a conspiracy case, joinder is particularly favored. United States v. Montgomery, 262 F.3d 233, 244 n.5 (4th Cir. 2001). Accordingly, a district court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence. Zafiro, 506 U.S. at - 3 - 539. In other words, a district court abuses its discretion only where the trial court s decision to deny a severance deprives the defendants of a fair trial and results in a miscarriage of justice. United States v. Harris, 498 F.3d 278, 291 (4th Cir. 2007) (citation and internal quotation marks omitted). The record here supports the district court s decision to deny the motion for severance. with his showing codefendants, of prejudice Fuller from severance under Rule 14. 357 (4th Cir. 2008). Having been indicted together a has not joint demonstrated trial as a strong required for United States v. Mir, 525 F.3d 351, Fuller s concerns about the relative culpability of himself and about the nature and quantity of the evidence against each respective defendant simply does not rise to the level of a miscarriage of justice. Second, the appellants contend that the district court erred when it failed to grant a mistrial sua sponte once it became known that a government witness, Clive Black, spoke to Lloyd s attorney, testimony. Paul Watson, IV, prior to Black s trial Because the appellants did not move for a mistrial below, we review the district court s decision not to declare one sua sponte for plain error. United States v. Castner, 50 F.3d 1267, 1272 (4th Cir. 1995). Plain error occurs when there is (1) an error, (2) which is plain and obvious under existing law, (3) which is so prejudicial as to affect the outcome of the - 4 - proceedings, integrity, and or (4) public which seriously reputation of the affects the proceedings. fairness, United States v. Hanno, 21 F.3d 42, 45 (4th Cir. 1994). In this case, the appellants cannot meet the plain error standard. colloquy The district court conducted a thorough and careful with counsel on two alleged statements to Watson. occasions concerning Black s After these lengthy colloquies, the appellants accepted the government s offer to stipulate that Black had made the statements described by Watson. Once the attorneys district accepted the government s stipulation, the court was under no obligation to order a mistrial sua sponte. The stipulation was a reasonable solution that defendants to further impeach Black s testimony. allowed the There was no error, let alone plain error. Fuller and Lloyd claim they received constitutionally ineffective assistance of counsel when their respective attorneys failed to move for a mistrial once it became known that Black spoke to Watson. To prove a claim of ineffective assistance of counsel, a defendant must show (1) that counsel s performance was deficient, and (2) that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). With respect to the first prong, the defendant must show that counsel s representation fell below an objective standard of reasonableness. Id. at 688. In addition, [j]udicial scrutiny of counsel s performance must be highly deferential. Id. at 689. We will address a claim of ineffective assistance on direct appeal only if the attorney s ineffectiveness conclusively appears on the record. United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). Otherwise, such claims are more properly raised in a motion filed pursuant to 28 U.S.C. ยง 2255. Our review convinces us (Continued) - 5 - The appellants evidence of sufficiency next their of challenge conspiracy the evidence the sufficiency convictions. to support We a of the review the conviction by determining whether there is substantial evidence in the record, when viewed in the light most favorable to the government, to support the conviction. 93 (4th Cir. 2011) reasonable finder United States v. Jaensch, 665 F.3d 83, Substantial evidence is evidence that a of fact could accept as adequate and sufficient to support a conclusion of a defendant s guilt beyond a reasonable doubt. United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). In the conspiracy count, the appellants were charged with conspiracy to distribute and to distribute cocaine and marijuana. drug conspiracy, elements: (1) an the government agreement possess with the intent to To obtain a conviction for a must between two prove or the more following people to distribute the drug or possess it with the intent to distribute; (2) the defendant s knowledge of the conspiracy; and (3) his knowing, voluntary participation in the conspiracy. States v. Green, 599 F.3d 360, 367 (4th Cir. 2010). United A defendant that ineffective assistance does not conclusively appear on the face of this record, and, therefore, we decline to address this claim on direct appeal. - 6 - may be convicted of conspiracy without knowing details and even if he plays only a minor role. all of its Id. at 367 68; Burgos, 94 F.3d at 858. In this case, there is sufficient evidence to support the appellants conspiracy convictions. The government s evidence at trial established that, in 2005 or 2006, Lloyd called Black, whom he had known since their early lives in Jamaica. Lloyd stopped in Chesapeake, Virginia, where Black lived, on his way back from Baltimore, Maryland to his home in Atlanta, Georgia. Lloyd told Black that he had cocaine to sell and suggested that Black come to Atlanta to purchase some of it. and his friend, Mario Woods, went to Thereafter, Black Atlanta several times, purchasing multi-kilogram quantities of cocaine from Lloyd and his associates on each occasion. On July prison. 24, Morris childhood. 2006, ran Cyntenious into Morris Fuller, whom was he released had known from since Fuller offered to assist Morris in reestablishing himself in the drug distribution business. Morris began buying half-ounces of cocaine from Fuller, but then began buying larger quantities. Sometime in 2008, Morris thought that the prices that paying he was were too high. Fuller then agreed to introduce Morris to Fuller s source of supply, Trenton Hawkins, so that Morris could negotiate a lower price. Thereafter, Morris bought cocaine from Hawkins, always placing his order - 7 - with Fuller, who delivered the cocaine to Morris on all but one occasion. Hawkins was obtaining the cocaine from Michael Cromwell. His biggest customers were Black and Fuller. The cocaine was transported from Texas to Virginia using commercial trucks owned by Hawkins. This continued until June 7, 2009, when Hawkins was stopped by police in Mississippi while on his way to Texas. The police had confiscated approximately $700,000.00 intended to use to purchase cocaine. that Hawkins After the stop, Hawkins introduced Fuller to another supplier since Hawkins was getting out of the business. Hawkins trucking services were also used by Lloyd. In late 2007 or early 2008, Lloyd called Black and told Black that he and Michael Daugherty were looking for a truck driver to transport marijuana from Texas to Virginia. Black asked his friend Lewis Scott if he knew of anyone who could do this, and Scott introduced Black to Hawkins. Hawkins to Lloyd and David Black, in turn, introduced Wheeler, who hired Hawkins to transport 1,700 pounds of marijuana from El Paso to Virginia, for which Hawkins and Black were paid a total of $70,000.00. In July 2008, Hawkins and a driver took Hawkins tractortrailer to El Paso, where they rendezvoused with Lloyd, Wheeler, and some Mexicans. In El Paso, they picked up a trailer packed with the marijuana hidden under a false floor and covered by a - 8 - load of watermelons. The truck was driven to Norfolk, Virginia followed by Lloyd, Wheeler, and the Mexicans. The watermelons were unloaded in Norfolk, and the truck was taken to Hawkins trucking yard in Portsmouth, Virginia. The marijuana was removed by Hawkins, Black, Lloyd, Wheeler, Daugherty, Scott, and Robert Napier. The marijuana was stored at Scott s house, in several units, storage and Virginia Beach, Virginia. at a house on Barkleaf Drive in Fuller later told Johnnie Cowan about this 1,700 pound shipment of marijuana. The house on Barkleaf Drive was used to store drugs and money, as a distribution point, and as a place for Lloyd and Wheeler to stay when they were in town from Atlanta and Texas. Andre Todd was allowed by Black to stay at the house on Barkleaf Drive after Todd was released from jail on September 4, 2008. Todd observed thousands of pounds of marijuana and up to ten kilograms of cocaine being stored there. When a shipment of drugs arrived in Virginia, Wheeler or Lloyd would also arrive. They would collect the proceeds from the sale of the drugs as the money came in. On July 31, 2008, the Virginia Beach Police Department executed a search warrant at one of the storage units rented by Black to store some of the marijuana and recovered 212 pounds of marijuana. Wheeler, Daugherty, and marijuana to this Virginia Beach unit. - 9 - Black had brought the When Black learned of the police activity, he enlisted the aid of Simuel Hinton and Ronald Nunn, and they removed 400 pounds of marijuana from another storage unit. In addition to using tractor-trailers, members of the conspiracy used cars and trucks to transport cocaine, marijuana, and cash. These vehicles included three trucks, one gray/black and the others red. Ford F-150 pickup If the loads arrived during the day, they would use the attached garage at Black s house in Chesapeake, Virginia to unload the contraband. They usually rendezvoused at a strip shopping center near Black s home before going to the house. Wheeler, Daugherty, and Napier. The trucks were driven by The trucks had secret compartments that were fitted into the taillights and opened hydraulically. In May 2009, a series of telephone conversations on Black s phone were intercepted pursuant to a court-ordered wiretap. May 16, 2009, Black and Lloyd discussed marijuana deals. was in Maryland at the time. On Lloyd On May 21, 2009, Black told Lloyd that Napier wanted to transport marijuana from Arizona. They also discussed setting up a 1,000 pound marijuana transaction between Todd and Lloyd s Baltimore associates. On May 23, 2009, a meeting took place in Virginia Beach involving Lloyd, Black, Todd, and - 10 - the Baltimore associates. They discussed Todd purchasing the marijuana. No agreement was reached. On June 1, 2009, Lloyd again was in Baltimore. He and Black again spoke of Mexico and Arizona. On June 4, 2009, Lloyd flew into the Phoenix, Arizona airport. He was approached by Detective Donald Gabrick of the Phoenix Police Department after acting suspiciously while claiming his luggage. Lloyd eventually consented to a search of his luggage, and Detective Gabrick found $100,530.00 concealed in the lining of Lloyd s suitcase, for which Lloyd had no plausible explanation. Detective Gabrick also recovered two used boarding passes and other documents indicating that Lloyd had flown from Baltimore to Phoenix on May 19 and May 28. Lloyd later told Black that he had lost $100,000.00 belonging to his Baltimore associates while he was in Arizona. In July 2009, Lloyd called a friend, Atlanta who owned a trucking company. Bruce Heyward, in This was shortly after Hawkins was stopped in Mississippi while on his way to Texas with nearly $700,000.00. Unbeknownst to Lloyd, Heyward had been arrested and was cooperating with law enforcement. Heyward to transport marijuana Baltimore, and Washington, D.C. telephone calls at the from Texas Lloyd wanted to Virginia, Heyward recorded a series of direction of agents, and Heyward eventually set Lloyd up with an undercover agent, who continued - 11 - negotiations continued with through Lloyd regarding September price 2009. and Lloyd quantity. mentioned This marijuana loads of up to 4,000 pounds originating in Arizona and Houston, Texas. Nothing was ever agreed upon. The last contact between the undercover agent and Lloyd occurred on June 8, 2010, when Lloyd tried again to arrange a meeting in Arizona to further discuss transporting marijuana. By this time, Black had been approached by agents and was cooperating in the investigation. In July 2009, Lloyd and his Baltimore associates came to Virginia looking for an individual who owed them money for a $200,000.00 drug debt. Black alerted the agents, and a violent confrontation was averted. The evidence summarized above is sufficient to support the appellants conspiracy convictions. Reduced to its essence, the appellants challenge to these convictions rests on an attack on the credibility of the government s witnesses, but the jury resolved the credibility issues in favor of the government. an appeals witnesses. court, we cannot review the credibility of As these United States v. Foster, 507 F.3d 233, 244 45 (4th Cir. 2007). The should be appellants resolved raise in other their arguments favor. We which have arguments and find them to be without merit. judgments of the district court are affirmed. - 12 - they contend reviewed these Accordingly, the We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED - 13 -
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