United States v. Earl Fuller, Jr. , 498 F. App'x 330 ( 2012 )

UNPUBLISHED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; 2:11-
cr-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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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 and to possess with the intent to
distribute cocaine and marijuana, and numerous substantive
offenses. On appeal, they challenge their convictions on
numerous fronts. We affirm.
First, 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. United States v.
Singh, 518 F.3d 236, 255 (4th Cir. 2008). 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 539. In other words, a
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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. Having been indicted together
with his codefendants, Fuller has not demonstrated a strong
showing of prejudice from a joint trial as required for
severance under Rule 14. United States v. Mir, 525 F.3d 351,
357 (4th Cir. 2008). 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, Paul Watson, IV, prior to Black’s trial
testimony. 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
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proceedings, and (4) which seriously affects the fairness,
integrity, or public reputation of the proceedings. United
States v. Hanno, 21 F.3d 42, 45 (4th Cir. 1994).
In this case, the appellants cannot meet the plain error
standard. The district court conducted a thorough and careful
colloquy with counsel on two occasions concerning Black’s
alleged statements to Watson. 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 accepted the government’s stipulation, the district
court was under no obligation to order a mistrial sua sponte.
The stipulation was a reasonable solution that allowed the
defendants to further impeach Black’s testimony. 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. § 2255. Our review convinces us
(Continued)
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The appellants next challenge the sufficiency of the
evidence of their conspiracy convictions. We review the
sufficiency of the evidence to support a 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. United States v. Jaensch, 665 F.3d 83,
93 (4th Cir. 2011) Substantial evidence is evidence that a
reasonable finder 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 possess with the intent to
distribute cocaine and marijuana. To obtain a conviction for a
drug conspiracy, the government must prove the following
elements: (1) an agreement between two or more 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. United
States v. Green, 599 F.3d 360, 367 (4th Cir. 2010). 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.
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may be convicted of conspiracy without knowing all of its
details and even if he plays only a minor role. 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. Thereafter, Black
and his friend, Mario Woods, went to Atlanta several times,
purchasing multi-kilogram quantities of cocaine from Lloyd and
his associates on each occasion.
On July 24, 2006, Cyntenious Morris was released from
prison. Morris ran into Fuller, whom he had known since
childhood. 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 he was paying 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
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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 confiscated approximately $700,000.00 that Hawkins had
intended to use to purchase cocaine. 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. Black, in turn, introduced
Hawkins to Lloyd and David 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’ tractor-
trailer 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
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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 storage units, and at a house on Barkleaf Drive in
Virginia Beach, Virginia. 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 Black had brought the
marijuana to this Virginia Beach unit. When Black learned of
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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 Ford F-150 pickup
trucks, one gray/black and the others red. 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. The trucks were driven by
Wheeler, Daugherty, and Napier. 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. On
May 16, 2009, Black and Lloyd discussed marijuana deals. Lloyd
was in Maryland at the time. 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 the Baltimore associates.
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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, Bruce Heyward, in
Atlanta who owned a trucking company. 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. Lloyd wanted
Heyward to transport marijuana from Texas to Virginia,
Baltimore, and Washington, D.C. Heyward recorded a series of
telephone calls at the direction of agents, and Heyward
eventually set Lloyd up with an undercover agent, who continued
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negotiations with Lloyd regarding price and quantity. This
continued through September 2009. Lloyd mentioned 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. As
an appeals court, we cannot review the credibility of these
witnesses. United States v. Foster, 507 F.3d 233, 244–45 (4th
Cir. 2007).
The appellants raise other arguments which they contend
should be resolved in their favor. We have reviewed these
arguments and find them to be without merit. Accordingly, the
judgments of the district court are affirmed.
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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
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