United States v. Lonnell Tucker ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 9, 2021 Decided September 3, 2021
No. 19-3042
UNITED STATES OF AMERICA,
APPELLEE
v.
LONNELL TUCKER,
APPELLANT
Consolidated with 19-3043, 19-3078
Appeals from the United States District Court
for the District of Columbia
(No. 1:18-cr-00267-1)
(No. 1:18-cr-00267-2)
(No. 1:18-cr-00267-6)
Paul S. Rosenzweig, appointed by the court, argued the
cause for appellant Anthony Fields. Amelia Schmidt, appointed
by the court, argued the cause for appellant Abdul Samuels.
With her on the briefs was Matthew G. Kaiser, appointed by
the court. Stephen C. Leckar, appointed by the court, argued
the cause for appellant Lonnell Tucker.
2
Daniel J. Lenerz, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Elizabeth
Trosman, Chrisellen R. Kolb, and Gregory P. Rosen, Assistant
U.S. Attorneys.
Before: KATSAS, RAO, and WALKER, Circuit Judges.
Opinion for the Court filed PER CURIAM.
PER CURIAM: Appellants Anthony Fields, Abdul Samuels,
and Lonnell Tucker were convicted on several drug- and
firearm-related offenses. Each appellant challenges his
convictions, and Samuels also challenges his sentence. We
affirm.
I
In May 2018, a grand jury indicted Fields, Samuels,
Tucker, and three other individuals on several charges related
to an alleged drug-dealing conspiracy. The indictment
stemmed from an investigation by the Bureau of Alcohol,
Tobacco, Firearms and Explosives (ATF) of drug activity at
Next Level Cuts, a barbershop in the District of Columbia.
Much of the government’s evidence came from searches
in the months preceding the indictment. During a traffic stop
in November 2017, officers found what appeared to be a drug
ledger, approximately $9,000, and drug paraphernalia in
Fields’s vehicle. The ATF executed a search warrant on the
barbershop three months later. In a suite above the barbershop,
agents found cash, firearms, more drug paraphernalia, and
large quantities of narcotics — heroin mixed with fentanyl,
PCP, Suboxone, and synthetic marijuana. In the same room,
they also found a document listing a medical appointment for
Fields and a receipt for a purchase made with his credit card.
A search of Fields’s home led to more drug ledgers, two of
3
which listed “Foots” (i.e., Samuels). During the ensuing
searches of Samuels’s home, ATF agents found a shotgun, drug
paraphernalia, crack cocaine, marijuana, and synthetic
marijuana. During the search, Samuels admitted that he kept
the gun under his bed for protection.
Also central to the government’s case was testimony from
Byran Clark, a drug dealer who purportedly worked for Fields.
Clark testified that Fields ran a drug operation out of the
barbershop’s upstairs suite and that Samuels often acted as a
gatekeeper to the suite. He also reported that Tucker sold drugs
out of the barbershop and frequented the suite.
Five defendants proceeded to trial. One pleaded guilty
during the trial. The jury returned a mixed verdict as to the
other four. It acquitted one defendant on the sole charge
against him. It also acquitted Fields and Samuels on several
firearms- and narcotics-related charges. But it found Fields,
Samuels, and Tucker guilty of conspiracy to distribute and
possess with intent to distribute various narcotics. See 21
U.S.C. §§ 841, 846.1 It also found Fields guilty of possessing
with intent to distribute each of the narcotics alleged in the
conspiracy. Id. § 841(a). And it found Samuels guilty of
possessing with intent to distribute cocaine base, id., of
possessing synthetic marijuana, id. § 844, and of felony
possession of a firearm, 18 U.S.C. § 922(g).
The district court sentenced Fields to 192 months of
imprisonment, Samuels to 84 months of imprisonment, and
1
The jury found Fields guilty of conspiring to distribute PCP,
heroin, fentanyl, buprenorphine, marijuana, and synthetic marijuana.
Samuels was found guilty of conspiring to distribute heroin and
fentanyl. And Tucker was found guilty of conspiring to distribute
heroin.
4
Tucker to 60 months of imprisonment. All three appealed and
collectively raise eight claims. We address each claim in turn.
II
We start with Fields, who contends that the police officers
who searched him and his vehicle in November 2017 lacked a
sufficient basis to conduct their traffic stop, violating the
Fourth Amendment. Prior to the search, officers conducting
undercover surveillance on a store known to sell drug
paraphernalia witnessed Fields exit the store. The officers
followed him. Fields drove to a nearby parking lot where
another person entered Fields’s car and then left after less than
two minutes. Suspecting a drug sale and wanting to remain
undercover, the officers called for backup and followed Fields
to another nearby parking lot.
When backup officers arrived, they observed Fields
illegally speed through that parking lot and then park. They
momentarily observed Fields before they approached him and
asked for his driver’s license and registration. “Due to his
nervous behavior and furtive movements,” they then asked
Fields to step out of his car and keep his hands away from his
pockets. App. 145.
Contrary to the instruction, Fields made “constant furtive
movements towards his pockets.” Id. So the backup officers
conducted a pat down, during which Fields spontaneously
uttered “that white powder in my pocket is a supplement.” Id.The “white powder” was Mannitol, a known cutting agent for
cocaine. Id. at 146.
The backup officers also found $2,000 in cash and a ledger
on Fields. Inside his car, a K-9 found another $7,001 in cash
and multiple bottles with concealed “false bottoms containing
5
trace amounts of white powder.” Id. Fields was subsequently
arrested.
Months later, in February 2018, ATF agents applied for a
search warrant of Fields’s car and the barbershop, which was
suspected of being a stash house. The 18-page application
included a paragraph about the November 2017 stop. After a
court granted the search warrant, ATF agents found additional
evidence of Fields’s drug trafficking.
Before trial, Fields challenged the legality of the vehicular
stop and search warrant. The district court held an evidentiary
hearing on the stop. Sergeant Chaney (one of the two
undercover officers) and Officer Haskett (one of the backup
officers) both testified. The court found their testimony
credible, concluded that there was probable cause to stop
Fields, and denied Fields’s suppression motion. The court also
denied Fields’s motion to suppress evidence from the February
2018 search.
As to the November 2017 stop, Fields challenges the
court’s findings that (1) the officers were credible, and
(2) there was probable cause for the stop. In addition, he
disputes the district court’s rejection of his argument regarding
the 2018 search, and he now adds an argument not raised in the
district court — that the evidence from the February 2018
search warrant should be suppressed as poisonous fruit of the
allegedly unlawful November 2017 stop.
A
As for the officers’ credibility, we review the district
court’s findings for clear error. United States v. Delaney, 955
F.3d 1077, 1081–82 (D.C. Cir. 2020). And we reverse “when
a district court credits exceedingly improbable testimony.”
6
United States v. Delaney, 651 F.3d 15, 18 (2001) (cleaned up)
(emphasis added).
Fields offers three reasons for reversal.
First, he argues that because Officer Haskett did not
immediately stop him or take the necessary steps to cite him
for speeding, no speeding actually occurred. But that
conclusion does not follow from those facts. Officer Haskett
was taking steps to cite Fields for speeding until he discovered
evidence of a more serious crime — Fields’s drug trafficking.
It is therefore understandable the stop did not end how it began.
Second, Fields makes much of Sergeant Chaney’s
statement that he could not recall “[i]f there were any obvious
reasons for the stop.” App. 118. What Chaney actually said,
when asked if he could recall “[i]f there were any obvious
reasons for stop,” was: “I believe there were, but off the top of
my head, I couldn’t tell you what it was. Id. But in any event,
Sergeant Chaney was not even the officer who conducted the
stop. Cause for the stop here depends on what was seen by
Officer Haskett. And he recalled that Fields was speeding.
Third, Fields argues that Officer Haskett’s testimony that
Fields “was going a little fast,” id. at 133, is inconsistent with
his written report that Fields was “traveling at a high rate of
speed through the parking lot” and that officers approached
Fields to confront him “about speeding through the parking
lot,” id. at 145.
That argument, however, distorts Officer Haskett’s
testimony, which included at least five statements about
Fields’s driving:
(1) “I saw a silver Range Rover speeding through the
parking lot”;
7
(2) Fields “was going a little fast for people to — for [him]
to react to people walking across the road”;
(3) “I already had probable cause to stop the vehicle
because of speeding”;
(4) “I don’t know the exact speed limit, but I do know that
he was driving faster than he should if people are
walking with their children and families shopping”; and
(5) Fields’s “[s]peed [was] greater than reasonable.”
Hr’g Tr. 9, 11, 31, ECF No. 246 (emphases added).
Contrary to Fields’s argument, there is no genuine
inconsistency between the written report and the totality of
Officer Haskett’s testimony. One can imagine a case where it
might matter whether a defendant was barely speeding or
dangerously speeding. But this is not that case. All that matters
is that Fields committed a traffic violation.
The district court did not err in finding the officers’
testimony credible. And we, like the district court, rely on it
for the next part of our analysis.
B
We review the district court’s determination that there was
a legal basis for the stop de novo. See Delaney, 955 F.3d at
1081–82.
Because Officer Haskett observed Fields speeding, he had
probable cause for the stop. It is well settled that a traffic stop
“is reasonable where the police have probable cause to believe
that a traffic violation has occurred.” Whren v. United States,
517 U.S. 806, 810 (1996); see also United States v. Sheffield,
8
832 F.3d 296, 302 (D.C. Cir. 2016) (quoting Whren, 517 U.S.
at 810).2
We will not consider Fields’s argument that the speeding
was merely a pretextual justification for the stop because the
Supreme Court’s precedents “foreclose any argument that the
constitutional reasonableness of traffic stops depends on the
actual motivations of the individual officers involved.” Whren,
517 U.S. at 813. So too do this court’s precedents. See
Sheffield, 832 F.3d at 302–03.
We affirm the district court’s denial of Fields’s motion to
suppress.
C
Because Officer Haskett lawfully stopped Fields, there is
no poisonous tree from which poisonous fruit could fall.
Moreover, Fields forfeited his argument that the evidence from
the February 2018 search warrant should be suppressed as fruit
of the poisonous tree by not raising that argument in district
court. “[S]uppression arguments that are not presented to the
trial court are deemed waived and cannot be argued on appeal.”
United States v. Castle, 825 F.3d 625, 632 (D.C. Cir. 2016)
(cleaned up).
III
Fields next argues that the district court erred when it
denied his request to represent himself at trial. Fields had a
difficult relationship with his attorneys throughout the
prosecution. He fired his first attorney in 2018. Three months
2
Even without probable cause, an officer’s reasonable suspicion is
alone enough to justify a traffic stop. See Heien v. North Carolina,
574 U.S. 54, 60 (2014).
9
before trial, he fired that attorney’s successor. And then, seven
days into trial, he tried to fire his third attorney. At that point,
over his co-defendants’ objections, Fields moved to represent
himself. When the district court asked why, Fields said his
attorney had not had time to learn the details of the case. He
also believed his attorney was not “aggressive enough” during
the trial. App. 361. The district court denied Fields’s request,
noting they were far along in the trial and Fields’s self-
representation at that juncture might harm his co-defendants.
Fields asks us to review the district court’s decision de
novo. But when a defendant’s request to represent himself is
made after trial has begun, we review the district court’s
decision for abuse of the court’s “considerable discretion.”
United States v. Noah, 130 F.3d 490, 498 (1st Cir. 1997); see
also United States v. Washington, 353 F.3d 42, 46 (D.C. Cir.
2004) (applying abuse of discretion standard).
“A person accused of a crime has an absolute right, under
the Sixth Amendment, to represent himself only if he asserts
that right before trial.” Washington, 353 F.3d at 46 (emphases
added). But if asserted after a trial begins, the right of self-
representation is qualified. It must yield to other interests when
those interests, such as harm to co-defendants, outweigh it. See
United States v. Bankoff, 613 F.3d 358, 373–74 (3d Cir. 2010)
(“However, after trial has commenced — i.e., at least after the
jury has been empaneled — the right of self-representation is
curtailed. In that context, district courts have discretion to deny
an untimely request to proceed pro se after weighing the
prejudice to the legitimate interests of the defendant against the
potential disruption of proceedings already in progress. How
this balance should be struck is ultimately within the sound
discretion of the district court, and we will review its decision
under a highly deferential abuse-of-discretion standard.”)
(cleaned up); United States v. Walker, 142 F.3d 103, 108 (2d
10
Cir. 1998) (“Once a trial has begun, the defendant’s right to
self-representation is sharply curtailed. In cases in which the
request is made following the commencement of the trial, the
district judge must balance the prejudice to the legitimate
interests of the defendant against the potential disruption of
proceedings already in progress. On appeal, considerable
weight will be given to the district court’s assessment of this
balance.”) (cleaned up); see also United States v. Dougherty,
473 F.2d 1113, 1124 (D.C. Cir. 1972).
Citing this court’s concern in United States v. Washington
that a defendant’s request to make his own closing argument
may be an attempt to tell his story while evading cross-
examination, see 353 F.3d at 46, Fields says, “At most,
Washington stands for the proposition that a defendant may be
denied self-representation when the request is an effort to game
the system.” Appellants’ Br. 42. We disagree. Although a
defendant’s attempt to manipulate the process is a sufficient
reason to deny a mid-trial request for self-representation, it is
not a necessary reason. Prejudice to co-defendants is also a
sufficient reason. So too is disruption of the proceedings.
Bankoff, 613 F.3d at 373.
Here, the district court stated it could not “ignore the
interests and the rights of the other defendants in this case.”
App. 367. It thoroughly explained to Fields his request would
“risk harming” his co-defendants, “whether it’s by a question
you ask; whether it’s by some objection you make or by an
objection you don’t make.” Id. The court then again noted its
duty to “not only consider your rights but the rights of these
four other men” and concluded “the rights of these four other
men will be jeopardized.” Id. Therefore, the court denied
Fields’s mid-trial request, “given the late juncture and the
amount of time that has passed in this case and where we find
ourselves in this case.” Id.11
“A trial involving a pro se defendant and co-defendants
who are assisted by counsel is pregnant with the possibility of
prejudice.” United States v. Veteto, 701 F.2d 136, 139 (11th
Cir. 1983) (cleaned up). In this case, the reasons to fear that
possibility — listed above by the district court — were
compelling. And the district court could have added to those
reasons Fields’s erratic trial attendance and unwarranted
hostility to fair proceedings. See, e.g., Appellee’s Supp. App.
422 (Fields: “I’m being railroaded here, man. I’m being
railroaded here. I said this from the beginning that we wasn’t
going to get no justice in this court.”); id. at 424 (Fields refused
to attend afternoon trial proceedings); App. 372 (Fields: “I’m
fighting the prosecution and I’m fighting you.” Court: “You’re
not fighting me.” Fields: “I’m definitely fighting you.”).
The district court did not abuse its considerable discretion
when it denied Fields’s request to represent himself.
IV
Fields raises two ineffective-assistance-of-counsel claims
under Strickland v. Washington, 466 U.S. 668 (1984). To
prevail, he must show (1) “that counsel made errors so serious
that counsel was not functioning as the ‘counsel’ guaranteed
the defendant by the Sixth Amendment” and (2) that the error
prejudiced his defense. Harrington v. Richter, 562 U.S. 86,
104 (2011) (cleaned up). “Even under de novo review, the
standard for judging counsel’s representation is a most
deferential one.” Id. at 105. We “must apply a strong
presumption that counsel’s representation was within the wide
range of reasonable professional assistance.” Id. at 104.
Because Fields’s claims are raised for the first time before
this Court, we have two options — remand for an evidentiary
hearing or reject them outright. The latter is permitted when
defendants present their claims in a vague or conclusory
12
manner, when the trial record shows no deficient performance,
or when that record shows no prejudice. United States v.
Sitzmann, 893 F.3d 811, 831–32 (D.C. Cir. 2018) (per curiam);
United States v. Rashad, 331 F.3d 908, 909–10 (D.C. Cir.
2003).
Here, every paragraph of Fields’s brief — with the
possible exception of his third of five paragraphs, noted below
— is conclusory. And even when his arguments are at their
least conclusory, the trial record shows no deficient
performance or prejudice.
A
His first claim is laid out in four paragraphs. He begins in
paragraph one by alleging that the relationship with his
attorneys — recall that he fired the first two, and tried to fire
the third — was “broken” and that their investigations were not
“adequate”:
As we set forth above, Mr. Fields had a broken
relationship with each of his attorneys. With
respect to the first two, Mr. McCants and Mr.
Retureta, one aspect of their ineffectiveness is
already identified in the record but requires
further exploration on remand — namely, their
lack of adequate investigation.
Appellants’ Br. 48.
Then in paragraph two, Fields describes his version of the
evidence against him:
As the Court is aware from the recitation
elsewhere in this brief there was limited direct
evidence against Mr. Fields. No surveillance
13
photos showed him engaging in drug
transactions. The only testimonial evidence
against him came from a cooperating witness
who, like all such witnesses, had mixed
motivation. Thus, the main ground for Mr.
Fields’ conviction lay in the Government’s
attempt to tie him to drugs found in a room on
the second floor above the barbershop. His
alleged constructive possession of the goods
found in that room was a critical piece of the
government’s case in chief.
Id.Next, in paragraph three, Fields comes as close as he gets
to a non-conclusory argument. He alleges other people had
access to a room above the barbershop where he kept personal
items and instrumentalities of drug trafficking. And he faults
his initial attorneys for not finding them. But he never says
how many people had access, who they were, or why we should
believe that these unidentified people actually exist — aside
from Fields’s entirely self-serving “insiste[nce]” that they do:
And thus, negating that inference of
constructive possession was a vital component
of Mr. Fields’ defense. Throughout the time
prior to trial, Mr. Fields insisted that other
individuals also had keys to the room above the
barbershop — a fact which, if established,
would have afforded him the opportunity to
argue the insufficiency of the government’s
evidence attempting to attribute those drugs to
him. Yet, Mr. Fields’ initial attorney, Mr.
McCants, does not appear to have conducted the
investigation necessary to evaluate Fields’s
14
requests. And Mr. Fields maintains that there is
no evidence that Mr. Retureta pursued that
investigation, either.
Id. at 48–49 (cleaned up).
Even assuming this, Fields’s least conclusory paragraph,
is sufficiently non-conclusory — which is doubtful — it was
neither deficient performance nor prejudicial for his counsel
not to investigate “other individuals” with “keys to the room
above the barbershop” where Fields kept cash, drugs, drug
paraphernalia, and personal items. Connecting others to the
room would not have eliminated the evidence connecting
Fields to the room. So even if his attorney had investigated the
unnamed “other individuals,” and even if they too were drug
dealers, the jury would have learned nothing more than the
unremarkable fact that Fields, a drug dealer, hung out and
shared space with other drug dealers. Cf. Trial Tr. 69, ECF No.
312 (“[D]espite the fact that you heard Mr. Fields in person and
on the phone again and again and again talk about how
everybody has got keys, everybody has access . . . , [m]ultiple
people can jointly have property in their constructive
possession. That’s the concept of both constructive possession
and a conspiracy. It’s teamwork.”).
Finally, in paragraph four, Fields ends his first claim where
he began — by repeating his conclusory claim that his
attorneys should have “conduct[ed] an investigation”:
As the Supreme Court recently put it:
“Counsel . . . has a duty to make reasonable
investigations or to make a reasonable decision
that makes particular investigations
unnecessary. . . . In any ineffectiveness case, a
particular decision not to investigate must be
directly assessed for reasonableness in all the
15
circumstances, applying a heavy measure of
deference to counsel’s judgments.” Here, no
assessment has been made as to the judgment of
counsel in failing to conduct an
investigation — manifestly necessitating an
evidentiary inquiry.
Id. at 49 (cleaned up).
B
Fields’s other (conclusory) claim is laid out in one
paragraph — paragraph five. There he alleges his attorney did
not adequately cross-examine Clark, the government’s witness
who identified him as the leader of the conspiracy. But Fields
identifies no question his attorney should have asked that
would have impeached Clark or exculpated Fields. Instead,
Fields faults his attorney for not mentioning the absence of call
records reflecting Clark’s conversations with Fields. The
absence of evidence, however, is not evidence of absence. So
the absence of call records would not, in Fields’s words, have
“exploit[ed] inconsistencies” in Clarks’s testimony. Id. And
Fields fails to specify any other purported inconsistencies:
In addition, at an evidentiary hearing Mr. Fields
would also establish the reasons for his
dissatisfaction with the representation provided
by Ms. West, whose cross-examination of the
cooperating witness, Byran Clark, was in Mr.
Fields’ view inadequate. She failed to exploit
inconsistencies between the proffers that Mr.
Clark earlier had made to the government and
his sworn testimony. By way of example,
although Clark contended that he was in
frequent contact with Mr. Fields there were no
16
call records — none — reflecting conversations
between them.
Id.In short, Fields does little more than state his
“dissatisfaction” with his attorneys based on an investigation
and cross-examination he deems inadequate for the vaguest of
reasons and then conclude that this alone entitles him to relief.
But we reject conclusory claims that leave out specific reasons
for counsel’s deficient performance and prejudice under
Strickland. It is not nearly enough for Fields to simply state his
dissatisfaction and then conclude that his dissatisfaction
satisfied Strickland. We will therefore not remand Fields’s
ineffective-assistance-of-counsel claims for an evidentiary
hearing and instead reject those claims.3
V
We now turn to Samuels’s claims. He first contends that
his trial counsel, Joseph Conte, provided ineffective assistance.
Samuels primarily argues that Conte was ineffective under
Cuyler v. Sullivan, 446 U.S. 335 (1980), which requires the
defendant to show “(1) that his lawyer acted under an actual
conflict of interest” and (2) that the conflict caused “an actual
lapse in representation.” United States v. McGill, 815 F.3d
846, 943 (D.C. Cir. 2016) (cleaned up); see Cuyler, 446 U.S. at
349. Because Cuyler relaxes Strickland’s prejudice
3
We also hold a non-conclusory argument would have fared no
better. With regard to Clark’s testimony, the performance of Fields’s
trial attorney was not deficient or prejudicial. She repeatedly elicited
purported inconsistencies between his pre-trial statements and trial
testimony, as did three attorneys for Fields’s co-defendants. Fields’s
attorney even made the point about the absence of text messages in
her closing argument.
17
requirement, we are “reluctant to allow defendants to force
their ineffective assistance claims into the ‘actual conflict of
interest’ framework and thereby supplant the strict Strickland
standard.” United States v. Taylor, 139 F.3d 924, 930 (D.C.
Cir. 1998) (cleaned up). We thus closely scrutinize claims
under Cuyler.
Samuels argues that Conte was conflicted because his
daughter worked for the U.S. Attorney’s Office for the District
of Columbia, which prosecuted Samuels. Although Conte
mentioned his daughter’s job to the prosecutor, he informed
neither Samuels nor the district court. Shortly before
Samuels’s sentencing, the district court learned about the issue,
appointed new counsel, and ordered briefing. The court
concluded that Conte’s failure to disclose his daughter’s job
raised a potential conflict of interest, and it set an evidentiary
hearing on that issue. Later, the court granted the parties’ joint
motion to vacate the hearing without resolving the conflict
issue. Now on appeal, Samuels again contends that Conte had
a conflict of interest.
As discussed, we ordinarily remand “colorable and
previously unexplored claims of ineffective assistance” for
evidentiary hearings. United States v. Marshall, 946 F.3d 591,
596 (D.C. Cir. 2020) (cleaned up); see McGill, 815 F.3d at 942.
But remand is unwarranted where the record establishes that
counsel was not ineffective, where the appellant’s allegations
are vague and conclusory, or where the appellant fails to
identify an issue that “requires a determination of facts.”
Sitzmann, 893 F.3d at 832 (cleaned up). Moreover, our
standard for remand is blunted by “the strong presumption that
counsel made all significant decisions in the exercise of
reasonable professional judgment,” which extends to claims
under Cuyler. Taylor, 139 F.3d at 934 (cleaned up); see also
Burger v. Kemp, 483 U.S. 776, 784 (1987) (“[W]e generally
18
presume that the lawyer is fully conscious of the overarching
duty of complete loyalty to his or her client.”).4
We assume that Conte was conflicted and resolve this
appeal under Cuyler’s second prong, which considers whether
the conflict led to an “actual lapse in representation.” McGill,
815 F.3d at 943 (cleaned up). To satisfy this standard, Samuels
must articulate a strategy that a reasonable, nonconflicted
defense counsel would have pursued. See United States v.
Gantt, 140 F.3d 249, 254 (D.C. Cir. 1998). The conflict must
have caused the failure to pursue this strategy, United States v.
Bruce, 89 F.3d 886, 896 (D.C. Cir. 1996), and must have
“significantly affected counsel’s performance . . . rendering the
4
We are skeptical that Samuels preserved his ineffective-assistance
claim. “The law in this circuit is that a claim of ineffective assistance
must be made in a motion for a new trial ‘when counsel changes prior
to appeal and when there is still a reasonable opportunity to challenge
a conviction in the District Court.’” United States v. Wood, 879 F.2d
927, 933 (D.C. Cir. 1989) (quoting United States v. Debango, 780
F.2d 81, 86 (D.C. Cir. 1986)). Before he appealed, Samuels received
new counsel and pressed a claim that his former counsel was
ineffective because of a conflict of interest. Moreover, after the
district court set an evidentiary hearing to explore the conflict issue,
Samuels — acting through his new counsel — affirmatively moved
to proceed without a hearing. Nevertheless, the government waived
any forfeiture (or waiver) argument by stipulating that it would not
raise that issue in the joint motion to vacate the evidentiary hearing.
See United States v. Layeni, 90 F.3d 514, 522 (D.C. Cir. 1996). The
government’s stipulation is not binding on us, see Weston v.
WMATA, 78 F.3d 682, 685 (D.C. Cir. 1996), and we have significant
concern with remanding now for a hearing that Samuels
affirmatively eschewed. But because we may reject Samuels’s
Cuyler claim on the present record, we accept the stipulation and
proceed to the merits.
19
verdict unreliable, even though Strickland prejudice cannot be
shown,” Mickens v. Taylor, 535 U.S. 162, 173 (2002).
Under this standard, Conte’s failure to tell anyone other
than the prosecutor about his daughter’s job is not itself enough
to establish ineffective assistance. Cuyler “requires proof of
effect upon representation.” Id. Without more, the “inadequate
disclosure” of a conflict is “not an adverse effect on counsel’s
performance.” United States v. Mett, 65 F.3d 1531, 1536 (9th
Cir. 1995); see Blake v. United States, 723 F.3d 870, 878, 881–
82 (7th Cir. 2013). And Samuels does not explain how Conte’s
limited disclosure so significantly affected his performance as
to make the verdict unreliable.
To show an adverse effect, Samuels identifies three points
that he claims Conte failed to raise. According to Samuels,
Conte (1) missed an argument supporting a motion to suppress
his statement about the shotgun found under his bed, (2) failed
to timely oppose expert testimony on drug distribution, and (3)
did not cite evidence to support a multiple-conspiracy
instruction. Samuels posits that Conte avoided these points to
advance his daughter’s interests as an employee in the U.S.
Attorney’s office — i.e., he “pulled punches that a reasonable,
conflict-free counsel would have thrown.” Appellants’ Br. 51.
Samuels concludes that these failures make his verdict
unreliable. We disagree.
To begin, Samuels failed to identify any plausible link
between the alleged conflict and the points that Conte
purportedly missed. See Bruce, 89 F.3d at 896. His theory of
causation — that Conte “pulled punches” to help his daughter
— is belied by the trial record, which shows that the punches
Conte threw were no less forceful than the ones he ostensibly
pulled. For example, as explained below, Conte sought to
sever Samuels’s trial from Fields’s, which would have
20
considerably increased the government’s workload, see
Richardson v. Marsh, 481 U.S. 200, 210 (1987). He also
forcefully challenged the credibility of the government’s
central witness and offered alternative explanations for why
Samuels appeared on Fields’s ledger (to pay for car insurance)
and for why Samuels identified the shotgun (to cover for his
girlfriend). With no distinction between these arguments and
the ones that Conte ostensibly missed, Samuels’s theory of
causation is not plausible.
Separate from causation, none of the purportedly missed
arguments identifies a plausible lapse in representation. The
first concerns Conte’s unsuccessful motion to suppress
Samuels’s admission that he owned the shotgun agents found
in his house. Conte had argued that the admission was
involuntary because Samuels was suffering from heroin
withdrawal at the time. The district court disagreed. On
appeal, Samuels faults Conte for not also arguing that the
statement was involuntary because he was under the influence
of cocaine.
Conte’s failure to make this argument was not a colorable
lapse in representation. The “mere fact that one has taken
drugs, or is intoxicated, or mentally agitated, does not render
consent involuntary.” United States v. Castellanos, 518 F.3d
965, 969 (8th Cir. 2008) (cleaned up). Instead, “coercive police
activity” is necessary to find a confession involuntary.
Colorado v. Connelly, 479 U.S. 157, 167 (1986). And the
district court, in rejecting the heroin-withdrawal argument,
found that the audio recording of Samuels’s confession showed
“no coercive police activity.” App. 89. It would thus have
been futile to argue that Samuels’s consent was involuntary due
to cocaine use. And the failure to raise a meritless objection is
not colorably deficient. See Sitzmann, 893 F.3d at 833.
21
Second, Samuels argues that Conte failed to investigate or
timely challenge testimony from a government expert that the
amount of cocaine seized from Samuels’s home —
approximately 3.5 grams — was consistent with distribution
rather than personal use. Conte moved to exclude the
testimony on the day of the expert’s testimony, but the district
court denied the motion as untimely.
Samuels again identifies no colorable deficiency. For one
thing, he does not explain why the motion to exclude the expert
testimony might have been successful if timely, so this
argument is too vague and conclusory to support remand. See
id. at 832–33. He instead contends that Conte failed to develop
evidence to counter the government’s expert. But Conte forced
the expert to concede that the amount of cocaine in Samuels’s
possession could have been for personal use. And he relied
heavily on the possibility of personal use in his closing
arguments, contending, for example, that Samuels owned a
scale because he bought in bulk and did not want to be cheated.
In other words, Samuels faults Conte for not offering
cumulative evidence to support personal use, which is not
enough for remand. See id. at 833.
Finally, Samuels contends that Conte botched his request
for a multiple-conspiracy instruction, which would have
clarified that the jury needed to find that Samuels was a
member of the same conspiracy charged in the indictment to
support a guilty verdict. In denying Conte’s request, the district
court reasoned that there was no evidence of Samuels
“interacting with anyone else . . . who’s not identified as a
conspirator in this case.” App. 609. Samuels contends that
there was such evidence, which Conte missed, namely Clark’s
testimony that Samuels obtained crack cocaine to distribute in
Virginia from “a guy named Miguel Harris.” Id. at 391. The
22
indictment mentioned neither Harris nor a conspiracy to
distribute crack cocaine.
It is at least plausible that Samuels would have received
the multiple-conspiracy instruction had Conte flagged this
evidence. If requested, a district court must give the instruction
where the “record evidence supports the existence of multiple
conspiracies.” United States v. Sanders, 778 F.3d 1042, 1047
(D.C. Cir. 2015) (cleaned up). And Clark testified that Samuels
“started purchasing” crack from Harris for distribution.
App. 391. This testimony could perhaps support the inference
that Harris was a “regular source,” which would be enough to
create a separate conspiracy. United States v. Morris, 836 F.2d
1371, 1374 (D.C. Cir. 1988).
But Conte’s failure to secure the instruction is not enough
to show that a conflict “significantly affected” his performance
and made the verdict “unreliable.” Mickens, 535 U.S. at 173.
Whatever the contours of this standard, the failure to recall a
single line of testimony in a three-week trial that might support
a peripheral jury instruction cannot fairly be described as
significant. Moreover, it casts no doubt on the verdict, which
found that Samuels was guilty of conspiring to distribute heroin
and fentanyl, not crack cocaine. Samuel’s case thus falls well
outside Cuyler, which “is designed to protect a defendant when
it is impossible to reconstruct what might have occurred
without counsel’s conflict of interest.” Plunk v. Hobbs, 766
F.3d 760, 766 (8th Cir. 2014).
Samuels alternatively contends that Conte was ineffective
under Strickland, which requires him to show that his counsel’s
performance was deficient and prejudicial, see 466 U.S. at 687.
For the reasons given above, Samuels has not proven deficient
performance. And because he does not satisfy Cuyler’s lower
standard to prove a “significant[]” effect on representation, he
23
also fails to satisfy Strickland’s more demanding requirement
of prejudice. Mickens, 535 U.S. at 173.
In sum, Samuels has established no colorable claim of
ineffective assistance under Cuyler or Strickland. His Cuyler
claim fails because he has not plausibly proven that Conte’s
alleged conflict of interest caused an adverse effect that rises to
the level of an actual lapse in representation. And his
Strickland claim fails for lack of any colorable case for
deficient performance or prejudice.
VI
Samuels next argues that the district court impermissibly
limited his ability to cross-examine Clark, the government’s
central witness, about his prior bad acts. When Clark testified,
he had previously pleaded guilty to kidnapping and obstruction
of justice as part of a plea agreement that depended on his
cooperation against Samuels in this case. Samuels claims that
Clark earned the kidnapping charge by taking a person hostage
at gunpoint, robbing him, and pointing a gun at the victim’s
head. For obstruction of justice, Samuels contends that Clark
directed a third party to threaten a witness to not testify. Clark
also had other prior convictions, including one for murder.
Samuels sought to cross-examine Clark about his convictions
and the facts underlying them to impeach Clark’s credibility
and to establish that the plea agreement gave Clark a bias.
The district court adopted a halfway approach, explaining
that it had to balance the probative value of Clark’s prior bad
acts against the risk that the facts would “just dirty [him] up
because he’s a bad dude.” App. 428. The court allowed
Samuels to cross-examine Clark about the existence of his prior
convictions; about the facts underlying charges the government
reduced, dropped, or never brought due to Clark’s cooperation;
and about other possible sources of bias. But it excluded
24
questions about the facts underlying his convictions, reasoning
that they would be “more prejudicial than probative.”
Appellee’s Supp. App. 490. It also agreed with the government
that those questions risked a “circus within a circus, a trial
within a trial” about Clark. App. 433–34. Finally, it refused to
let Samuels question Clark about the alleged witness
intimidation after concluding that Samuels had no factual basis
in the record to assume a threat occurred.
Samuels contends that the district court’s ruling violated
both the Confrontation Clause and Federal Rule of Evidence
403. Under the Confrontation Clause, a trial court “may limit
cross-examination only after there has been permitted, as a
matter of right, a certain threshold level of cross-examination.”
United States v. Hall, 945 F.3d 507, 513 (D.C. Cir. 2019)
(cleaned up). That threshold is satisfied “so long as defense
counsel is able to elicit enough information to allow a
discriminating appraisal of a witness’s motives and bias.” Id.(cleaned up). Otherwise, district courts “retain wide latitude”
to “impose reasonable limits on . . . cross-examination” under
the Federal Rules of Evidence. Delaware v. Van Arsdall, 475
U.S. 673, 679 (1986). Relevant here, Rule 403 allows courts
to exclude evidence “if its probative value is substantially
outweighed by a danger of . . . unfair prejudice” or “confusing
the issues.” We review limits on cross-examination for an
abuse of discretion. United States v. Lin, 101 F.3d 760, 768
(D.C. Cir. 1996); Henderson v. Geo. Wash. Univ., 449 F.3d
127, 133 (D.C. Cir. 2006).
The district court did not violate the Confrontation Clause.
Such a violation occurs “only when the court bars a legitimate
line of inquiry that might have given the jury a significantly
different impression of the witness’s credibility.” United
States v. Miller, 738 F.3d 361, 375 (D.C. Cir. 2013) (cleaned
up). Samuels elicited ample testimony to give the jury the
25
impression that Clark was lawless and had a substantial reason
to testify in favor of the government. Among other impeaching
facts, the jury learned about Clark’s cooperation agreement; his
prior convictions; and that he robbed and kidnapped a man,
stole a car, and used a firearm during various crimes. This
cross-examination easily clears the threshold required by the
Confrontation Clause. See, e.g., Hall, 945 F.3d at 513 (no
violation where defendant cross-examined government witness
on guilty plea in cooperation deal).
Nor did the district court abuse its discretion under Rule
403. Without acknowledging the court’s concerns about unfair
prejudice, Samuels argues that the salacious facts underlying
Clark’s prior convictions are “information the jury should have
heard to evaluate whether someone with that little regard for
human life and the law would have any compunction about
lying under oath to reduce his time in prison.” Appellants’ Br.
75. But while “evidence of lawlessness can undermine the
perpetrator’s probable truthfulness . . . admission of such
evidence is subject to the sound discretion of the trial court.”
United States v. Garcia Sota, 948 F.3d 356, 363 (D.C. Cir.
2020); see also FED. R. EVID. 609(a)(1)(A). And the court here
acted well within its discretion in concluding that the risk of
unfair prejudice stemming from the facts it excluded
substantially outweighed any cumulative probative value. This
Court has long acknowledged the risk that evidence of prior
criminal activity would impermissibly lead juries to discredit
witnesses because they are “bad men,” rather than because they
are biased or not credible. United States v. Fox, 473 F.2d 131,
135 (D.C. Cir. 1972). Thus, “when evidence of a prior
conviction is admitted for purposes of impeachment, cross-
examination is usually limited to the essential facts rather than
the surrounding details of the conviction.” United States v.
Baylor, 97 F.3d 542, 544 (D.C. Cir. 1996). Not only did the
district court allow cross-examination on the essential facts of
26
Clark’s convictions, it let the jury hear about a wide range of
Clark’s other criminal activity. We find no error in the district
court’s limited restrictions on Clark’s cross-examination.
Samuels also contends that the details underlying the
obstruction charge are particularly probative because they
involved a threat to intimidate a witness. But the district court
did not limit questions about witness intimidation based on
Rule 403. As noted, it restricted those questions because
Samuels lacked a factual basis to ask them. See Lin, 101 F.3d
at 768 (“counsel must have a reasonable basis for asking
questions on cross-examination which tend to incriminate or
degrade the witness”) (cleaned up). In his reply brief, Samuels
objects that the district court erroneously discounted evidence
that provided a factual basis for the questions. This objection
is forfeited, see M.M.V. v. Garland, 1 F.4th 1100, 1111 (D.C.
Cir. 2021), and also meritless. Samuels points to no record
evidence suggesting that Clark threatened a witness. Instead,
he gestures at unspecified grand-jury testimony that he admits
is not in the record, which is not good enough. See United
States v. Boyd, 54 F.3d 868, 871–72 (D.C. Cir. 1995) (basis for
cross-examination must be in the record). Samuels also faults
the government for not providing further evidence to support
its representation that Clark’s obstruction charge did not
involve threats. But an objection to limits on cross-
examination is not the appropriate vehicle to challenge the
government’s compliance with discovery obligations. Samuels
held the burden of proffering a sufficient factual basis to
question Clark about threats. See Lin, 101 F.3d at 768. And
the district court did not abuse its discretion when it ruled that
he failed to satisfy that burden.
Moreover, any error by the district court would have been
“rendered fully harmless by the broad range of other heinous
conduct that the court allowed defense counsel to bring out in
27
cross-examination.” Garcia Sota, 948 F.3d at 363; see Van
Arsdall, 475 U.S. at 684; United States v. Whitmore, 359 F.3d
609, 622 (D.C. Cir. 2004). As explained, Samuels extracted
testimony from Clark about his convictions and the facts
underlying several violent crimes for which the government
declined to prosecute him. Samuels’s inability to elicit similar
impeaching evidence was harmless because the cross-
examination “was enough to enable the jury to assess the
relation between [Clark’s] lawlessness and his propensity for
truthfulness.” Garcia Sota, 948 F.3d at 363.
In sum, the district court acted well within its discretion
under the Confrontation Clause and Rule 403 in limiting
Clark’s cross-examination, and any improper limits would
have amounted to harmless error.
VII
We next consider the arguments made by Samuels and
Tucker that the district court abused its discretion in denying
their motions to sever their trials from Fields’s trial. Samuels
and Tucker argue that severance was warranted due to
“spillover” prejudice resulting from the disparity in evidence
between them and Fields as well as Fields’s obstreperous
behavior during trial. Fields, the undisputed ringleader of the
drug distribution conspiracy, frequently displayed less than
exemplary behavior in court. At one point, he absented himself
from the trial for part of a day. Towards the end of trial, Fields
testified on his behalf. He was the only defendant to do so, and
the testimony did not go well. Fields gave conflicting and
unbelievable explanations for the evidence against him,
accused the government of planting evidence, speculated about
the government’s motives for prosecuting him and his co-
defendants, and became combative with the prosecutor and the
district court. Both before and after Fields’s testimony,
28
Samuels and Tucker moved to sever their trials on the ground
that Fields’s lies and misbehavior would be held against them
by the jury. The district court denied this motion, explaining
that Fields’s credibility was a matter for the jury to decide and
that Fields did not say anything “about the other defendants that
already didn’t come in the government’s case-in-chief.” App.
725.
“We review the denial of a motion to sever for abuse of
discretion.” United States v. Wilson, 605 F.3d 985, 1015 (D.C.
Cir. 2010). The Federal Rules of Criminal Procedure permit
joinder of defendants “alleged to have participated in the same
act or transaction, or in the same series of acts or transactions,
constituting an offense or offenses.” FED. R. CRIM. P. 8(b).
Joint trials are preferred in federal criminal cases because they
“promote efficiency and serve the interests of justice by
avoiding the scandal and inequity of inconsistent verdicts.”
Zafiro v. United States, 506 U.S. 534, 537 (1993) (cleaned up).
The preference for joint trials is “‘especially strong’ when ‘the
respective charges require presentation of much the same
evidence, testimony of the same witnesses, and
involve . . . defendants who are charged, inter alia, with
participating in the same illegal acts.’” Wilson, 605 F.3d at
1016 (cleaned up). We find that neither the disparity in
evidence between co-defendants, nor Fields’s behavior during
trial, warranted severance because any risk of prejudice was
curable with appropriate instructions.
A joined defendant may seek to sever his trial from that of
his co-defendants. “If the joinder
of . . . defendants . . . appears to prejudice a defendant . . . ,
the court may . . . sever the defendants’ trials, or provide any
other relief that justice requires.” FED. R. CRIM. P. 14(a)
(emphasis added). The permissive language of this rule makes
clear that severance is not required “even if prejudice is
29
shown.” Zafiro, 506 U.S. at 538–39. Instead, Rule 14 grants a
district court “significant flexibility to determine how to
remedy any potential risk of prejudice posed by the joinder of
multiple defendants in a single trial.” United States v. Moore,
651 F.3d 30, 95 (D.C. Cir. 2011) (per curiam). Severance is
the exception rather than the rule and is required only when
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. Although a serious risk may arise
when “defendants are tried together in a complex case and they
have markedly different degrees of culpability,” even in cases
where the risk of prejudice is high, “less drastic measures, such
as limiting instructions, often will suffice to cure any risk of
prejudice.” Id. In light of these principles, motions to sever
should be granted “sparingly.” United States v. Celis, 608 F.3d
818, 844 (D.C. Cir. 2010).
Appellants “carr[y] the burden of demonstrating prejudice
resulting from a failure to sever.” United States v. Gooch, 665
F.3d 1318, 1336 (D.C. Cir. 2012). Samuels and Tucker here
assert spillover prejudice, namely the risk “the jury would use
evidence of one defendant’s guilt against another.” United
States v. Spriggs, 102 F.3d 1245, 1256 (D.C. Cir. 1996). They
maintain this prejudice arose from trying them, peripheral
players in the conspiracy, together with Fields, “a perjurious
and obstructionist lead defendant.” Appellants’ Br. 97.
Samuels and Tucker fail to demonstrate prejudice.
First, Samuels and Tucker have not demonstrated
prejudice from evidentiary spillover. Disparity in evidence
requires severance “when the evidence against one defendant
is ‘far more damaging’ than the evidence against the moving
party,” but will not require severance in a conspiracy trial when
there is “substantial and independent evidence of each
30
defendant’s significant involvement in the conspiracy.”
Moore, 651 F.3d at 95–96 (cleaned up). “[A]bsent a dramatic
disparity of evidence, any prejudice caused by joinder is best
dealt with by instructions to the jury to give individual
consideration to each defendant.” Id. at 95 (cleaned up). The
varying roles played by members of a conspiracy will “not
render joint trial inappropriate as long as the jury can
reasonably compartmentalize the substantial and independent
evidence against each defendant.” United States v. Straker,
800 F.3d 570, 628 (D.C. Cir. 2015) (per curiam). As we will
explain in Part VIII, the government introduced substantial and
independent evidence of Samuels’s and Tucker’s involvement
in the conspiracy. Although Samuels and Tucker played a
subordinate role in the conspiracy led by Fields, we hold “the
disparity of evidence did not rise to a level necessary to
mandate severance.” Moore, 651 F.3d at 96.
Second, Samuels and Tucker have not established
prejudice from Fields’s misbehavior during trial. Courtroom
misconduct by a co-defendant must be especially egregious to
mandate severance. See, e.g., United States v. Rocha, 916 F.2d
219, 229 (5th Cir. 1990) (no severance required when co-
defendant “mouthed the words, ‘You are dead,’ and moved a
finger across his throat” during a witness’s direct examination);
United States v. Marshall, 458 F.2d 446, 448, 452 (2d Cir.
1972) (no severance required when a co-defendant directed
obscenities at the court and witnesses, absented himself, threw
a chair towards the jury box, and cut his wrists during
summation). “Cautionary instructions . . . should remain the
primary weapons against improper jury bias.” United States v.
Mannie, 509 F.3d 851, 857 (7th Cir. 2007). Fields’s behavior
was mildly disruptive: he was combative on the stand, refused
to attend part of the trial, and made demonstrably false
statements during his testimony. This misbehavior is simply
not so beyond the pale as to mandate severance.
31
At bottom, this is not a case in which curative instructions
were ineffective against potential prejudice. The district court
gave several careful and tailored instructions throughout the
trial. When Fields failed to show up one day, the district court
instructed the jury that his “absence should not . . . be viewed
as evidence or held against any other defendant in this matter
in any way whatsoever.” App. 347. The district court also
instructed the jury that “each defendant is entitled to have the
issue of his guilt as to each of the crimes for which he’s on trial
determined from his own conduct and from the evidence that
applies to him as if he were being tried alone.” Appellee’s
Supp. App. 784–85. The instructions explicitly stated that the
jury’s verdict as to one defendant should not “influence [its]
verdict with respect to any other defendant as to that count or
any other count in the Indictment.” Id. at 785. The
effectiveness of the district court’s instructions is indicated by
the jury returning mixed verdicts as to each of the defendants,
including Fields. See United States v. Gilliam, 167 F.3d 628,
636 (D.C. Cir. 1999) (explaining that mixed “verdicts indicate
that the jury was able to distinguish between the defendants”).
We presume that juries follow the court’s instructions when, as
here, there is no evidence to the contrary. Id.The district court cured any potential prejudice to Samuels
and Tucker with limiting instructions and did not abuse its
discretion in denying their motions to sever.
VIII
We turn next to Samuels’s and Tucker’s challenge to the
sufficiency of the evidence to sustain their convictions for
conspiracy to distribute heroin under 21 U.S.C. § 846.
To overturn a jury verdict for insufficient evidence, “a
defendant faces a high threshold.” United States v. Washington,
12 F.3d 1128, 1135 (D.C. Cir. 1994). In reviewing for
32
sufficiency of the evidence, we consider “‘whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.’”
United States v. Gaskins, 690 F.3d 569, 576–77 (D.C. Cir.
2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
In applying this standard, we “draw[] no distinction between
direct and circumstantial evidence, and ‘giv[e] full play to the
right of the jury to determine credibility, weigh the evidence
and draw justifiable inferences of fact.’” United States v.
Williams, 836 F.3d 1, 6 (D.C. Cir. 2016) (quoting United States
v. Battle, 613 F.3d 258, 264 (D.C. Cir. 2010)).
To convict Samuels and Tucker of conspiracy to distribute
heroin, the government had to prove they acted knowingly and
with the “specific intent to further the conspiracy’s objective.”
United States v. Childress, 58 F.3d 693, 708 (D.C. Cir. 1995).
The evidence here easily passes muster under our deferential
standard of review.
With respect to Samuels, sufficient evidence supports that
he knowingly furthered the conspiracy to distribute heroin.
Fields controlled operations in the drug distribution conspiracy
from the suite above the barbershop, where agents found
approximately $60,000 worth of heroin as well as other drug
paraphernalia. The evidence established that Samuels assisted
Fields in this endeavor. Clark, the cooperating witness who
testified that he frequently went to the barbershop to obtain
heroin from Fields, placed Samuels regularly with Fields while
Fields packaged drugs for distribution. GPS data from
Samuels’s cellphone also put him in the vicinity of the
barbershop hundreds of times during the life of the conspiracy.
As Clark testified, Samuels assisted Fields by opening the door
and controlling access to the upstairs suite where the drugs
were, which was corroborated by text messages to Samuels that
33
included “let me in” and “open the door.” Appellee’s Supp.
App. 191–92. Text messages also demonstrated that Samuels
was in frequent contact with other members of the conspiracy
and used coded references to drug transactions. Moreover,
Clark testified that Samuels had delivered five grams of heroin
on one occasion when Clark was in a car with two other
members of the conspiracy. Viewed in the light most favorable
to the government, this evidence, combined with Samuels’s
frequent presence in the barbershop while Fields, the leader of
the conspiracy, engaged in drug transactions, is sufficient to
sustain Samuels’s conviction for conspiracy to distribute
heroin. See, e.g., Childress, 58 F.3d at 712 (finding the
evidence sufficient when defendants personally handled drugs,
prepared them for sale, and did so at the direction of the
conspiracy’s leader).
Sufficient evidence also supported Tucker’s conviction
and established his role as a street-level dealer in the
conspiracy. Clark’s testimony put Tucker at the barbershop
frequently, “[a]cting like [Tucker had] a license to sell
drugs . . . [h]aving . . . no discretion, . . . no trying to hide it or
anything, just out in the open.” Appellee’s Supp. App. 457.
Tucker’s frequent presence at the barbershop was corroborated
by GPS data and law enforcement surveillance. Notably,
agents observed Tucker engaged in “what appeared to be a
hand-to-hand narcotics transaction” on the street in front of the
barbershop. Id. at 363. Clark testified that he saw Tucker
coming from the upstairs suite of the barbershop adjusting his
“lower crotch area,” and explained that when he used to sell
drugs, he hid his stash in his “crotch area” to avoid detection
by the police. Id. at 458. Clark also explained that heroin could
be pink or tan depending on the substance it was cut with and
that dealers often used slang to talk about narcotics. Tucker’s
text messages mentioned selling pink shirts and tan shoes,
statements the jury could reasonably infer were references to
34
narcotics. Given Tucker’s close relationship with Fields and
frequent presence at the barbershop, the jury also could
reasonably infer that Tucker obtained the heroin he sold from
Fields. Viewing the evidence in the light most favorable to the
government, sufficient evidence supported Tucker’s
conviction for conspiracy to distribute heroin.
Samuels and Tucker also seek to rely on Gaskins, in which
this court found the evidence insufficient to sustain a drug-
trafficking conspiracy conviction. In that case, despite
extensive police surveillance and searches, no evidence put
Gaskins in the presence of drugs, nor did any witness connect
him to the conspiracy. See 690 F.3d at 572. Tucker argues that
the evidence against him is similarly flimsy because he did not
directly text members of the conspiracy, and Clark’s testimony
and the street-level buys at most established his role as an
independent street-level dealer. Samuels also points to the lack
of controlled buys, wiretaps, or surveillance as reasons why the
evidence against him was insufficient. These arguments
founder on the fact that the evidence against both Samuels and
Tucker was far more robust than the evidence in Gaskins.
Unlike Gaskins, both Samuels and Tucker “discussed drugs,
distributed drugs, [and were] in the presence of drugs
connected to the conspiracy.” Gaskins, 690 F.3d at 577; see
also United States v. Shi, 991 F.3d 198, 207 (D.C. Cir. 2021)
(distinguishing Gaskins as a case in which there was an
“overwhelming lack of evidence”).
For these reasons, the evidence is sufficient to sustain the
convictions of Samuels and Tucker.
IX
Tucker also challenges his sentence, arguing that the
district court erred in calculating the quantity of heroin
attributable to him for purposes of setting his Sentencing
35
Guidelines range. Although the district court’s calculation was
based on inferences, those inferences were reasonable in light
of the record.
We “review[] a sentence imposed under the Guidelines to
determine whether it is ‘reasonable.’” United States v. Flores,
995 F.3d 214, 219 (D.C. Cir. 2021) (quoting United States v.
Blalock, 571 F.3d 1282, 1285 (D.C. Cir. 2009)). This
determination involves two steps: First, we ensure the district
court did not commit a “significant procedural error,” and
second, we review whether the sentence is objectively
reasonable. United States v. Settles, 530 F.3d 920, 923 (D.C.
Cir. 2008) (quoting Gall v. United States, 552 U.S. 38, 51
(2007)). Tucker challenges only the district court’s
methodology for calculating the drug quantity attributable to
him — a procedural error. Significant procedural errors
include “failing to calculate (or improperly calculating) the
[Sentencing] Guidelines range, . . . selecting a sentence based
on clearly erroneous facts, or failing to adequately explain the
chosen sentence.” Gall, 552 U.S. at 51.
A defendant’s sentence for a drug conspiracy is based on
the amount of drugs attributed to him. Under the Sentencing
Guidelines, a defendant’s base offense level is derived from his
“relevant conduct,” which includes the drug quantity involved
for an offense. U.S.S.G. § 1B1.3 (2018) (cleaned up); United
States v. Burnett, 827 F.3d 1108, 1120 (D.C. Cir. 2016). When
necessary, such as when there has been “no drug seizure or the
amount seized does not reflect the scale of the offense,” the
district court must approximate the drug quantity. U.S.S.G.
§ 2D1.1 cmt. n.5. Further, when a defendant is part of a drug
conspiracy, his relevant conduct includes “all reasonably
foreseeable acts and omissions of others in furtherance of the
jointly undertaken criminal activity.” United States v. Bostick,
791 F.3d 127, 158 (D.C. Cir. 2015) (quoting U.S.S.G.
36
§ 1B1.3(a)(1)(B)). “We review the District Court’s
determination of drug quantity relevant for sentencing under a
clear error standard.” United States v. Mack, 841 F.3d 514, 527
(D.C. Cir. 2016).
The district court attributed 75 grams of heroin to Tucker.
Although the presentence report found Tucker’s relevant
conduct included 546.7 grams due to his involvement in the
conspiracy, the district court declined to hold Tucker
responsible for all the sales made from the barbershop or to
Clark. Instead, it estimated the amount of heroin for which
Tucker was personally responsible. Based on the amount of
heroin sold by Tucker to the confidential informant (0.58
grams), the GPS data, Clark’s testimony, and surveillance, the
district court estimated that Tucker sold 0.5 grams of heroin
five times weekly for thirty weeks, totaling 75 grams. That
quantity resulted in a Guidelines range of 51 to 63 months, and
with Tucker’s career offender enhancement, the range
increased to 210 to 262 months. The district court found this
range overstated Tucker’s criminal history, so it used the
sentences received by other members of the conspiracy as
benchmarks and ultimately sentenced Tucker to sixty months’
imprisonment. The district court’s calculation of the drug
quantity attributable to Tucker, which was based on reliable
evidence in the record, was not clearly erroneous.
Tucker argues the district court erred by using a method
for calculating the drug quantity for his base offense level that
was “unduly speculative.” Appellants’ Br. 105. We find,
however, that the district court employed a reasonable method,
which resulted in a conservative estimate. While it found
“Tucker was part of a core group of individuals that operated
out of that barbershop,” Appellee’s Supp. App. 794, it chose
not to attribute the 546.7 grams of heroin recommended by the
presentence report. The court instead used the amount of
37
heroin Tucker distributed in a single controlled buy to
extrapolate five similarly sized sales per week for thirty weeks.
Although one sale is a small sample size, that does not render
the court’s extrapolation unduly speculative, particularly when
it results in a conservative estimate. Cf. United States v.
Correa-Alicea, 585 F.3d 484, 491 (1st Cir. 2009) (affirming a
district court’s use of two controlled purchases multiplied by a
“highly conservative” “estimate of one transaction per day”).
In addition, the district court’s estimation that five sales per
week were of heroin is reasonable based on Tucker’s frequent
presence at the barbershop and the quantity of heroin seized
there. “[D]rug quantity calculations are an art, not a science,”
and the district court chose a reasonable method. United States
v. Block, 705 F.3d 755, 760–61 (7th Cir. 2013) (explaining “we
afford trial courts some room for speculation and reasonable
estimation so long as percentages and quantities were not
pulled out of thin air”) (cleaned up).
In sum, the district court did not clearly err in calculating
the drug quantity attributable to Tucker.
X
For the foregoing reasons, we affirm.
So ordered.