PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 04-4618
AARON DEMARCO FOSTER, a/k/a Turk,
a/k/a Ace, a/k/a Little Aaron,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-4619
KEON MOSES, a/k/a Black,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 04-4620
MICHAEL LAFAYETTE TAYLOR, a/k/a
Mike Mumbles,
Defendant-Appellant.
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(CR-02-410-CCB)
Argued: September 26, 2007
Decided: November 13, 2007
2 UNITED STATES v. FOSTER
Before WILKINSON, Circuit Judge,
HAMILTON, Senior Circuit Judge, and
T. S. ELLIS, III, Senior United States District Judge
for the Eastern District of Virginia, sitting by designation.
Affirmed by published opinion. Senior Judge Hamilton wrote the
opinion, in which Judge Wilkinson and Senior Judge Ellis joined.
COUNSEL
ARGUED: Robert Whelen Biddle, NATHANS & BIDDLE, L.L.P.,
Baltimore, Maryland; Arcangelo Michael Tuminelli, Baltimore,
Maryland, for Appellants. Stephanie Agli Gallagher, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee. ON BRIEF: Robert H. Waldman,
Annapolis, Maryland, for Appellant Michael Lafayette Taylor; Teresa
Whalen, Silver Spring, Maryland, William B. Purpura, Baltimore,
Maryland, for Appellant Aaron Demarco Foster. Rod J. Rosenstein,
United States Attorney, Andrea L. Smith, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Balti-
more, Maryland, for Appellee.
OPINION
HAMILTON, Senior Circuit Judge:
These are the consolidated appeals of three defendants, Keon
Moses, Michael Taylor, and Aaron Foster, who were tried, convicted,
and sentenced for conspiracy to possess with the intent to distribute
and to distribute fifty grams or more of cocaine base (crack), 21
U.S.C. § 846, and for various related substantive offenses. For the
reasons stated below, we affirm the district court’s judgments.
UNITED STATES v. FOSTER 3
I
A
This case concerns a drug conspiracy taking place within an
approximately six-square block neighborhood in West Baltimore,
Maryland known as "Lexington Terrace." (J.A. 329). According to the
government’s evidence produced at trial, between 1999 and late 2002,
rampant drug dealing took place in Lexington Terrace and numerous
acts of violence were performed in the neighborhood to protect this
drug dealing activity.
Put succinctly, the Lexington Terrace neighborhood was an open-
air drug market in which substantial quantities of crack were sold on
a daily basis during the charged time frame. All of the dealers in the
neighborhood had grown up in Lexington Terrace or worked with a
person who had grown up there. Some dealers belonged to a particu-
lar drug distribution gang within the neighborhood, while others did
not. Moreover, dealers often bore tattoos, which recognized their rela-
tionship to the neighborhood.
In some respects, Lexington Terrace dealers worked independent
of other dealers. For example, different dealers often had different
sources of supply. Some dealers sold their drugs in a distinctive color-
top vial, which allowed users to associate the color-top of the vial
with the quality of the product. Moreover, dealers competed with
other dealers for business; thus, when a vehicle approached with
somebody looking for drugs, multiple dealers, perhaps from multiple
gangs, approached the vehicle trying to consummate a sale.
In other respects, the Lexington Terrace drug dealers worked in
consort with each other. They shared stash houses and firearms. They
respected a user’s selection of a particular dealer, which allowed
numerous dealers to operate in the area, even dealers not associated
with a gang. A dealer’s decision to leave a drug dealing gang gener-
ally was respected, and the departing dealer enjoyed the freedom to
deal drugs on his own. Neighborhood dealers also made change for
each other on occasion. For their mutual aid and protection, Lexing-
ton Terrace dealers alerted each other to the presence of law enforce-
ment authorities and jointly controlled the area, through the use of
4 UNITED STATES v. FOSTER
intimidation and violence, to the exclusion of others. Dealers who
experienced legal troubles often received financial assistance from
other neighborhood dealers. For example, a dealer’s legal expenses
might be paid by another dealer or a dealer incarcerated might receive
some money to spend in prison. Dealers returning to the neighbor-
hood from a prison stint often received drugs on the front to sell from
other dealers, which allowed the newly-released dealer to reestablish
himself financially.
This peaceful coexistence between the neighborhood dealers
worked to the benefit of both users and the neighborhood dealers.
Users enjoyed the regular availability of drugs in the neighborhood,
while the dealers were able to thrive financially with steady business
and little violence amongst themselves.
It was within this environment that Moses, Taylor, and Foster sold
substantial quantities of crack. Foster was from the Lexington Terrace
neighborhood and had a "Terrace Life" tattoo on his right forearm.
(J.A. 453). Several witnesses testified that they had purchased crack
from Foster. Moreover, Aaron Butler, a neighborhood dealer, testified
that, in 1999, Foster was selling grey-top vials of crack and was using
Monique Andrews’s house as his stashhouse. Butler further testified
that, in 2000, he and Foster were selling crack together. Another wit-
ness testified that Foster was at times in charge of supervising his
gang’s drug activity. Foster was incarcerated in July 2000, and, upon
his release in October 2001, he returned to Lexington Terrace and
began dealing crack again.
Moses also grew up in the Lexington Terrace neighborhood. Butler
testified that, in 1999, Moses was selling crack with Brandon Allison,
using, like Foster, Monique Andrews’s house as a stashhouse. Moses
was arrested at that house on June 15, 1999, with the keys to the
house in his pocket.
Following a period of incarceration, Moses was released in August
2001 and immediately began selling purple-top vials of crack with
Taylor. Moses was stopped in his vehicle by a law enforcement offi-
cer in September 2001 and had 300 empty purple-top vials in his car.
Greg Spain was fronting narcotics to Moses in August/September
2001 because Moses had just been released from prison.
UNITED STATES v. FOSTER 5
Although he was eventually incarcerated on state charges of com-
mitting a double murder, Moses remained a participating member of
the conspiracy. From jail, he wrote a letter to Taylor instructing Tay-
lor to kill one of the witnesses ready to testify against him.
Taylor grew up in the Lexington Terrace neighborhood and had
Lexington Terrace tattoos. In mid to late 2001, Taylor was selling
purple-top vials of crack with Moses. Taylor also gave money to
Moses while Moses was on the run after the double homicide. At var-
ious times, Taylor sold crack and shared stashhouses with other Lex-
ington Terrace dealers.
In January 2002, after he turned eighteen-years old, Taylor’s par-
ticipation in the drug conspiracy began to escalate.1 He began dealing
with Brandon Allison, another Lexington Terrace dealer. That same
month, Taylor was arrested in two house raids at a stashhouse owned
by Pamela Mack and shared by Lexington Terrace dealers. In one of
the raids, Taylor’s fingerprint was found on a gun recovered at the
residence. Taylor later admitted to law enforcement authorities that he
was a drug dealer in the Lexington Terrace neighborhood.
In addition to each defendants’ extensive drug dealing activities,
the government’s case focused on related crimes of violence. The first
of these occurred on September 23, 2001 at 303 North Calhoun Street
in Baltimore, in the basement of a row house owned by Charles
Brockington III’s grandmother. On that day, Moses and Taylor,
accompanied by Marcus Baskerville,2 killed Gregory Spain and Ron-
ald Harris, and attempted to kill Brockington.
Spain, Harris, and Brockington were a group of drug dealers in a
neighborhood close to Lexington Terrace. Moses had been supplied
by Spain since Moses’s release from prison in August 2001. Moses
and Spain eventually had a falling out, so Moses decided to steal
Spain’s stash, with the help of Taylor and Baskerville.
1
Taylor turned eighteen-years old on December 31, 2001.
2
Baskerville was indicted along with the other defendants, but his case
was severed and tried separately.
6 UNITED STATES v. FOSTER
Moses, Taylor, and Baskerville donned masks, bandanas, and caps,
and went to Brockington’s on the day in question, where they found
Brockington in bed. Brockington lived in the basement of his grand-
mother’s house, and the front door was usually unlocked. Spain, Har-
ris, Robert "Snoop" McManus, and Samuel Wilder usually came
around every day, woke Brockington, and played video games and
hung out. On the day of the murders, Brockington heard what he
believed were his friends entering the house and coming downstairs.
He awoke to three armed, masked men surrounding his bed. The
assailants demanded drugs, money, and firearms, and kept asking for
Spain.
Spain eventually arrived as expected, could not get in, and started
shouting at the front door. Moses and Taylor took Brockington
upstairs to open the door. Brockington tried to tell Spain with his eyes
that there was a problem, but Moses grabbed Spain and pulled him
inside. All four went back downstairs, leaving the door unlocked.
Harris then showed up at the house and walked right into the scene
in the basement.
Thereafter, Moses took Brockington outside to a waiting vehicle
and drove him to the location where the drugs were supposedly
located. Taylor and Baskerville were left guarding Harris and Spain.
When Moses learned that no drugs were accessible at the other loca-
tion, Moses brought Brockington back to the house on North Calhoun
Street. Moses yelled for someone to open the door, and Taylor, leav-
ing Baskerville with Spain and Harris, went to answer the door.
Brockington recalled Taylor opening the door and then hearing the
sound of a single shot coming from the basement just as they got
inside the front door. Taylor had his firearm in one hand and pulled
Brockington down the basement steps, by his shirt, with the other
hand.
Brockington watched as Harris ran to one end of the basement with
Baskerville in pursuit, and Spain ran to the other end of the basement
with Moses and Taylor in pursuit. Brockington was being pulled
along by Taylor. Moses shot Spain at least seven times, which
resulted in Spain’s death. Taylor shot Brockington in the neck and
shoulder and tried to shoot him in the face after he fell. Brockington
UNITED STATES v. FOSTER 7
remained conscious. He watched from the ground as Moses and Tay-
lor ran to the other side of the basement in the direction of Harris and
Baskerville. More shots were fired, resulting in Harris’ death. As the
assailants left the basement, Brockington called out for Spain. Taylor
came back, stood over Brockington, and shot him again in the chest.
Brockington slipped in and out of consciousness. After a while,
Brockington managed to get up and out of the house. He was found
face down on the sidewalk, bleeding profusely from eight gunshot
wounds, by his father, McManus, and Wilder. To the three of them,
and to the first officers on the scene, Brockington stated, "Keon shot
me." (J.A. 647).
On February 22, 2002, in the 1800 block of Mount Street in Balti-
more, Michael Taylor killed McManus, one of the witnesses relevant
to the homicides on September 23, 2001. In fact, McManus had seen
Moses moments before the murder looking for Spain and had heard
Brockington say, "Keon shot me," (J.A. 647), after Brockington made
his way out of his grandmother’s house.
At about 5:00 p.m. that day, a minister who happened to be driving
through the block saw a lone gunman, wearing a hoodie, chasing
McManus and shooting at him. McManus fell, and the gunman stood
over him and shot him again before running away, leaving McManus
dead with $200 on his person.
In May 2002, law enforcement officers were investigating the mur-
der of Vance Beasley.3 In connection with that investigation, the offi-
cers executed a search warrant at Taylor’s house and recovered a
letter written to Taylor in early February 2002 by Moses, who was in
jail pending a state trial for the September 23, 2001 murders of Spain
and Harris. The letter contained instructions to Taylor to kill
McManus. In fact, Moses had identified McManus as the one who
could hurt Moses without Taylor’s intervention. The letter said, "His
3
According to the government, Taylor participated with Foster and
Gregory Parker in the murder of Beasley, purportedly to avenge the
deaths of Derek Hamlin and Kiari Cromwell, two drug dealers from Lex-
ington Terrace.
8 UNITED STATES v. FOSTER
statements can hurt me[,] dog. I don’t gotta say it, you know what I
mean?" (J.A. 726).
Butler testified that, prior to McManus’s murder, Taylor and Butler
had seen McManus on the street on two different occasions, and Tay-
lor discussed killing McManus. On the first occasion, there were too
many witnesses around. On the second occasion, Taylor did not have
his firearm. In a subsequent recorded conversation, Butler confronted
Taylor with McManus’s murder, and Taylor did not deny committing
the crime.
On April 15, 2002, in the 300 block of North Stricker Street, Balti-
more, Taylor and Foster attempted to kidnap Wilder, who had been
standing with McManus after Brockington was shot. As indicated ear-
lier, Wilder was close friends with Brockington, Spain, McManus,
and Harris.
The state trial against Moses for the Calhoun Street murders began
on April 15, 2002. Taylor and Foster, with Moses’s girlfriend, Linnea
Prout, were present in court watching the testimony. Foster and Tay-
lor had driven to court with Prout, and, on the way home, Foster and
Taylor detoured through Stricker and Saratoga Streets, looking for
someone. After Taylor and Foster dropped off Prout, they went back
to the 300 block of North Stricker Street. Once there, Taylor and Fos-
ter jumped out of the vehicle, Taylor grabbed Wilder from behind,
and there was a struggle. Wilder pulled out a gun and shot Foster.
Foster was taken to the hospital. Wilder and the gun were recovered,
and Wilder was charged with attempted murder. Foster’s statement to
the police, as the victim of that shooting, was that he and Taylor were
just trying to bring Wilder to court. In a recorded conversation, Taylor
told Butler that they wanted to sit with Wilder at Moses’s trial to
intimidate Brockington during his testimony.
On the evening of June 11, 2002, Jay Rhodes, a crack addict and
regular customer at Lexington Terrace, traveled in his car from Glen
Burnie, Maryland with his friend, Joe Morris, to Lexington Terrace
to purchase crack. After purchasing some crack, the pair returned to
Glen Burnie where they smoked it. Desiring more crack, they
returned to Lexington Terrace later that evening. The problem for the
pair was that neither had money. So Rhodes and Morris decided to try
UNITED STATES v. FOSTER 9
to steal some crack from a Lexington Terrace dealer. The plan was
to let a dealer come up to Rhodes’ car at which time Morris would
snatch the crack away from the dealer without paying for it.
Rhodes and Morris arrived in Lexington Terrace and pulled up to
a dealer, who asked Morris if he was interested in purchasing crack.
After Morris indicated that he was so interested, the dealer instructed
Rhodes to drive around the block and return. Upon returning, Rhodes
stopped his car, where several dealers were now congregating. Once
stopped, Foster entered the car through a rear passenger door. Foster
then asked, "Where the money at?" (J.A. 1025). Rhodes responded
that they did not have any money, adding that they were just trying
to see if any dealers had crack so that they could later return and buy
some. Foster responded, "[n]ah, this is not going down like that,"
(J.A. 1025), and proceeded to put a gun to Rhodes’ head, instructing
Rhodes and Morris to get out of the car. After they complied, Rhodes
attempted to reenter the car, but Foster pointed the gun over the roof
of the car and said, "[n]o, you’re not getting back in my car." (J.A.
1027). Foster, with the help of others, then escorted Rhodes and Mor-
ris to an alley and told them to strip. As Morris started to take his
clothes off, he ran down the alley and was able to escape. Rhodes also
tried to escape, but was caught and severely beaten. Law enforcement
later recovered Rhodes’ car on July 5, 2002.
B
On September 17, 2002, a grand jury sitting in the District of
Maryland returned an indictment, charging Foster, Moses, and Taylor
with conspiracy to possess with the intent to distribute and to distrib-
ute fifty grams or more of crack, 21 U.S.C. § 846. Foster was also
charged with two counts of murder by use of a firearm during and in
relation to a drug trafficking crime, 18 U.S.C. § 924(j) (one concern-
ing the murder of Beasley, the other concerning the murder of Cortez
Bailey, a rival drug dealer), one count of witness tampering (concern-
ing the attempt to kidnap Wilder), id. § 1512(b)(3), one count of using
a firearm during and in relation to a crime of violence (namely, the
carjacking), id. § 924(c), and one count of carjacking, id. § 2119.
Moses was also charged with three counts of murder by use of a fire-
arm during and in relation to a drug trafficking crime (concerning the
deaths of Spain, Harris, and McManus), id. § 924(j), and one count
10 UNITED STATES v. FOSTER
of using a firearm during and in relation to a drug trafficking crime
(concerning his possession of a firearm on the day of the Spain and
Harris murders), id. § 924(c). Taylor was also charged with two
counts of causing death with a firearm during and in relation to a drug
trafficking crime, id. § 924(j) (one concerning the murder of Beasley
and the other concerning the death of McManus), and one count of
witness tampering, id. § 1512(b)(3) (concerning the attempt to kidnap
Wilder).4 All of the counts, except for the conspiracy count, charged
the defendants under an aiding and abetting theory as well, id. § 2.
The indictment sought the death penalty against Taylor and Moses.
Superseding indictments were returned, but the charges against the
defendants essentially remained unchanged.
Prior to trial, the district court dismissed the two § 924(j) counts
against Foster and one of the § 924(j) counts against Taylor (the one
concerning the murder of Beasley). On April 1, 2004, the jury
returned verdicts of guilty on all remaining counts as to each of the
defendants. Following the capital sentencing phase of the trial pertain-
ing to Taylor and Moses, on April 28, 2004, the jury recommended
a sentence of life imprisonment.
On July 23, 2004, Moses was sentenced to life without the possibil-
ity of release on the conspiracy count, concurrent sentences of life
without the possibility of release on the § 924(j) counts, and a consec-
utive sentence of ten years’ imprisonment on the § 924(c) count. On
that same day, Taylor was sentenced to life without the possibility of
release on the conspiracy count, a concurrent sentence of life without
the possibility of release on the remaining § 924(j) count, and a con-
current sentence of ten years’ imprisonment on the witness tampering
count. On July 26, 2004, Foster was sentenced to life without the pos-
sibility of release on the conspiracy count, a concurrent sentence of
ten years’ imprisonment on the witness tampering count, a concurrent
sentence of twenty-five years’ imprisonment on the carjacking count,
and a consecutive sentence of seven years’ imprisonment on the
§ 924(c) count. Each defendant noted a timely appeal.
4
Taylor was not charged with any offenses related to the Spain and
Harris murders because he was a juvenile on the date of those murders.
UNITED STATES v. FOSTER 11
II
The defendants claim that the government, through a statement
made during the course of a lengthy rebuttal argument, constructively
amended the indictment from an indictment charging a large, loose-
knit conspiracy into one charging a much smaller conspiracy. Specifi-
cally, the defendants complain about the following comment: "[Y]ou
are the final deciders of what that conspiracy looks like, entirely up
to you. You can go big. You can go small." (J.A. 1941). Following
an objection, the district court stated, "[w]ell, in order to convict, they
have to find the conspiracy charged in the indictment and that’s, as
she said, it’s their decision." (J.A. 1941).
A constructive amendment to an indictment occurs when either the
government (usually during its presentation of evidence and/or its
argument), the court (usually through its instructions to the jury), or
both, broadens the possible bases for conviction beyond those pre-
sented by the grand jury. United States v. Floresca, 38 F.3d 706, 714
(4th Cir. 1994) (en banc). We have referred to constructive amend-
ments of a federal indictment as fatal variances because "the indict-
ment is altered to change the elements of the offense charged, such
that the defendant is actually convicted of a crime other than that
charged in the indictment." United States v. Randall, 171 F.3d 195,
203 (4th Cir. 1999) (citation and internal quotation marks omitted).
Constructive amendments are error per se and, given the Fifth
Amendment right to be indicted by a grand jury, "must be corrected
on appeal even when not preserved by objection." Floresca, 38 F.3d
at 714.
When considering a constructive amendment claim, "it is the
broadening [of the bases for a defendant’s conviction] that is
important-nothing more." Id. at 711. As explained in Floresca, "[i]t
matters not," when a constructive amendment has occurred, "whether
the factfinder could have concluded" that the defendant was guilty
even if the amendment had not occurred. Id. The key inquiry is
whether the defendant has been tried on charges other than those
made in the indictment against him. Id.
We find that the defendants were not tried on charges other than
those contained in the indictment. First, the district court’s conspiracy
12 UNITED STATES v. FOSTER
instruction tracked the drug conspiracy charged in the indictment.
Second, the evidence introduced by the government at trial was con-
sistent with the conspiracy alleged in the indictment. Third, the jury
was instructed that the arguments of counsel did not constitute evi-
dence and could not supersede any evidence before the jury. Fourth,
in the very same argument of which the defendants complain, the
government indicated to the jury that it was the jury’s responsibility
to determine if the government proved the conspiracy "charged in the
indictment." (J.A. 1888). In short, we simply cannot conclude that the
defendants were tried on charges not contained in the indictment. Cf.
United States v. Williams, 106 F.3d 1173, 1176 & n.2 (4th Cir. 1997)
(no impermissible amendment when indictment alleged distribution
of methamphetamine and prosecutor’s closing argument indicated
that admission to distribution of marijuana proved guilt, because jury
was instructed that closing argument was not evidence and the district
court instructed the jury that the government had the burden of prov-
ing beyond a reasonable doubt that the defendant distributed a mix-
ture and substance containing methamphetamine); United States v.
Russo, 708 F.2d 209, 212-14 (6th Cir. 1983) (no impermissible
amendment of indictment charging extortion by threats of economic
loss when evidence introduced at trial demonstrated extortion by
threats or fear of violence because jury instructions clearly limited
charge to extortion by threat of economic loss).
III
Taylor and Moses challenge a response made by the district court
to a question from the jury concerning the § 924(j) count that charged
Taylor and Moses with the murder of McManus by use of a firearm
during and in relation to the drug conspiracy.5 The indictment on this
count charged that Taylor and Moses were guilty under 18 U.S.C.
§§ 2 and 924(j). Notably, the indictment did not use language regard-
ing any other persons, known or unknown to the grand jury, who may
have participated in the offense. Moreover, the parties stipulated at
trial that Moses was incarcerated on the day of McManus’s murder.
5
Section 924(j) provides that a person, who in the course of violating
18 U.S.C. § 924(c) causes the death of a person through the use of a fire-
arm, shall, if the killing is a murder, be punished by death or by impris-
onment for any term of years or for life. 18 U.S.C. § 924(j).
UNITED STATES v. FOSTER 13
During deliberations, the jury asked the following question con-
cerning this count: "[R]egarding ‘aiding and abetting,’ does the other
person have to be Michael Taylor in order for Keon Moses to be
guilty?" (J.A. 1999). In asking the question, the jury attached a page
from the instructions and circled the portion stating, "Obviously, no
one can be convicted of aiding or abetting the criminal acts of another
if no crime was committed by the other person in the first place."
(J.A. 2000).
In response to the jury’s question, the district court stated:
Mr. Moses and Mr. Taylor are charged in Count V with kill-
ing Mr. McManus. Mr. Moses, who was incarcerated the
day of the murder, is charged on an aiding and abetting the-
ory. You must deliberate and decide whether Mr. Moses has
been proven guilty independent and separately from your
deliberation and decision as to Mr. Taylor and reach a sepa-
rate verdict as to each defendant. As to Mr. Moses, however,
the other person whom he is charged with aiding and abet-
ting in killing Mr. McManus is Mr. Taylor. To the extent
there is evidence that Mr. Moses aided and abetted anyone
to kill Mr. McManus, and Mr. Moses denied having done
so, there is no evidence that he aided and abetted anyone
other than Mr. Taylor. So, it is up to you [to] decide whether
the [g]overnment has proved beyond a reasonable doubt that
Mr. Moses aided and abetted Mr. Taylor in killing Mr.
McManus.
(J.A. 1995-96). Taylor and Moses contend that this response was
erroneous because it "(1) was improper for the Judge to state a con-
clusion of fact and (2) the trial court’s interpretation of aiding and
abetting was mistaken." Appellants’ Br. at 32.
We review a district court’s decision to respond to a jury’s ques-
tion, and the form of that response, for an abuse of discretion. United
States v. Smith, 62 F.3d 641, 646 (4th Cir. 1995). "[I]n responding to
a jury’s request for clarification on a charge, the district court’s duty
is simply to respond to the jury’s apparent source of confusion fairly
and accurately without creating prejudice." Id. An error requires
reversal only if it is prejudicial in the context of the record as a whole.
14 UNITED STATES v. FOSTER
United States v. United Med. & Surgical Supply Corp., 989 F.2d
1390, 1406-07 (4th Cir. 1993).
In this case, the district court acted within its discretion in respond-
ing to the jury’s question. At trial, the government sought to prove
that Taylor murdered McManus at Moses’s direction. The govern-
ment never suggested, through the indictment or the evidence pre-
sented at trial, that some third party was responsible for McManus’s
murder or that Moses, while incarcerated, aided and abetted any other
person other than Taylor. The defense countered with a defense of
mistaken identity. Given the manner in which the count was before
the jury, the court correctly told the jury that Moses was being
charged under an aiding and abetting theory, as he could not have
been a principal in McManus’s murder. The court then wisely
informed the jury to consider the guilt of Moses independently from
its consideration of Taylor’s guilt and to reach separate verdicts as to
each defendant. This portion of the court’s response reminded the jury
that it was required to separately determine whether the government
met its burden of proof as to each defendant. Thus, contrary to Taylor
and Moses’s suggestion, the court did not instruct the jury that Taylor
shot McManus. Finally, considering the fact that the only possible
person that Moses could have aided and abetted was Taylor, the court
correctly instructed the jury to decide whether the government proved
beyond a reasonable doubt that Moses aided and abetted Taylor in the
murder of McManus. Thus, the court prudently prevented the jury
from basing a guilty verdict on evidence not before it, i.e., that Moses
aided and abetted some unknown third party’s commission of the
McManus murder.
IV
The defendants challenge the sufficiency of the evidence to support
several of their convictions. A jury’s verdict must be upheld on appeal
if there is substantial evidence in the record to support it. Glasser v.
United States, 315 U.S. 60, 80 (1942). "[A]n appellate court’s reversal
of a conviction on grounds of insufficient evidence should be con-
fined to cases where the prosecution’s failure is clear." United States
v. Jones, 735 F.2d 785, 791 (4th Cir. 1984) (citation and internal quo-
tation marks omitted). In determining whether the evidence in the
record is substantial, we view the evidence in the light most favorable
UNITED STATES v. FOSTER 15
to the government and inquire whether there is evidence that a reason-
able 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). A defen-
dant challenging the sufficiency of the evidence faces a heavy burden.
United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). In eval-
uating the sufficiency of the evidence, we do not review the credibil-
ity of the witnesses and assume that the jury resolved all
contradictions in the testimony in favor of the government. United
States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998).
A
Taylor and Moses contend there is insufficient evidence to support
the jury’s verdict on the § 924(j) count related to the murder of
McManus. This argument is without merit.
Section 924(j) provides that a person, who in the course of violat-
ing 18 U.S.C. § 924(c) causes the death of a person through the use
of a firearm, shall, if the killing is a murder, be punished by death or
by imprisonment for any term of years or for life. 18 U.S.C. § 924(j).
The § 924(j) count related to the McManus murder and charged that
Taylor used a firearm in connection with the drug conspiracy count.
Thus, with respect to this count, the government was required to
prove three elements with regard to Taylor: (1) that Taylor committed
the predicate drug conspiracy offense; (2) that Taylor used the firearm
during and in relation to the drug conspiracy offense; and (3) that, in
the course of using that firearm, Taylor caused the murder of
McManus. Cf. United States v. Wallace, 447 F.3d 184, 187 (2d Cir.
2006) (discussing elements of a § 924(j) offense). With regard to
Moses, the government was required to prove that Moses participated
at some stage of the illegal venture with knowledge of the result and
the intent to bring about that result. United States v. Arrington, 719
F.2d 701, 705 (4th Cir. 1983) (discussing elements of aiding and abet-
ting).
Taylor and Moses contend that there is insufficient evidence in the
record to support the jury’s finding that Taylor murdered McManus.
In our view, the jury was presented with substantial circumstantial
evidence from which to find that Taylor murdered McManus.
16 UNITED STATES v. FOSTER
First, Butler testified regarding two occasions on which he and
Taylor saw McManus. On the first occasion, Taylor had a gun with
him and wanted to kill McManus. Butler talked him out of it because
of the number of people around. On the second occasion, Taylor did
not have a gun and, thus, felt that he could not kill McManus.
Second, the circumstances of McManus’s murder suggested an
assassination, as opposed to some other motivation. McManus was
chased on the street by the shooter, with witnesses around. He was
shot in the head, and he had over $200 on his person at the time of
his death. The money was not taken. Therefore, the jury could infer
that the motive of the shooter was not robbery. Third, the jury heard
a taped conversation between Butler and Taylor, in which Butler con-
fronted Taylor with the McManus killing, and Taylor did not deny it.
Fourth, the jury saw the letter from Moses to Taylor instructing
Taylor to kill McManus. After talking about how he was going to
ensure that another witness changed his statement, Moses said,
"S___P. That nigga. His statement can hurt me[,] dog. I don’t gotta
say it, You know what I mean?" (J.A. 2064-65). In our view, this cir-
cumstantial evidence, taken in totality and viewed in the light most
favorable to the government, is sufficient to sustain the jury’s finding
that Taylor murdered McManus.
Moses additionally argues that the evidence is insufficient to dem-
onstrate that he aided and abetted the commission of a § 924(j)
offense. More specifically, he argues that the government failed to
establish that he had actual knowledge that a firearm would be used
to kill McManus. Here, the evidence showed that Moses had
instructed Taylor to kill McManus in order to prevent his testimony
at Moses’s state trial.6 The jury also heard extensive evidence that
members of the conspiracy routinely used firearms to kill rival drug
dealers, for example, in the case of Spain and Harris. In view of this
evidence, we find no merit to Moses’s argument that he had no
knowledge that a firearm would be used to kill McManus. The jury
6
As noted earlier, Moses was tried in state court for the murders of
Spain and Harris.
UNITED STATES v. FOSTER 17
was presented with substantial evidence from which to find that
Moses aided and abetted Taylor’s murder of McManus.7
B
Foster argues that the evidence is insufficient to support the jury’s
determination that he had the mens rea required by the carjacking
statute, 18 U.S.C. § 2119.8 More specifically, he contends that the evi-
dence is inadequate to support the jury’s finding that he intended to
steal Rhodes’ car or, alternatively, that he would have seriously
harmed Rhodes to obtain the car. In response, the government posits
that the evidence is adequate to support the jury’s determination that
Foster intended to steal Rhodes’ car and was prepared to seriously
harm or kill Rhodes had he resisted Foster’s efforts to obtain the car.
7
In support of his argument, Moses relies on United States v. Spinney,
65 F.3d 231, 238-39 (1st Cir. 1995), which vacated the firearms convic-
tion of an accomplice to a bank robbery. Moses’s reliance on Spinney is
misplaced. In Spinney, the firearm was a handgun that was not visible
when the robber entered the bank, and the accomplice charged with aid-
ing and abetting remained outside of the bank. Moreover, the use of the
firearm in Spinney was not contemplated at the planning stages of the
robbery, while here the jury could infer that it was so contemplated in
this case.
8
The federal carjacking statute states:
Whoever, with the intent to cause death or serious bodily harm[,]
takes a motor vehicle that has been transported, shipped, or
received in interstate or foreign commerce from the person or
presence of another by force and violence or by intimidation, or
attempts to do so, shall—
(1) be fined under this title or imprisoned not more than 15
years, or both,
(2) if serious bodily injury [defined in a different statute]
results, be fined under this title or imprisoned not more than
25 years, or both, and
(3) if death results, be fined under this title, or imprisoned
for any number of years up to life, or both, or sentenced to
death.
18 U.S.C. § 2119.
18 UNITED STATES v. FOSTER
To obtain a conviction for carjacking under § 2119, the government
must prove that the defendant "(1) with intent to cause death or seri-
ous bodily harm (2) took a motor vehicle (3) that had been trans-
ported, shipped or received in interstate or foreign commerce (4) from
the person or presence of another (5) by force and violence or intimi-
dation." United States v. Applewhaite, 195 F.3d 679, 685 (3d Cir.
1999) (citation and internal quotation marks omitted).
The intent requirement of § 2119 is satisfied when the government
proves that, at the moment the defendant demanded or took control
of the vehicle, the defendant possessed the intent to seriously harm or
kill the driver if necessary to steal the car. Holloway v. United States,
526 U.S. 1, 12 (1999). The government need not prove that the defen-
dant actually intended to cause the harm; it is sufficient that the defen-
dant was conditionally prepared to act if the person failed to
relinquish the vehicle. United States v. Wilson, 198 F.3d 467, 470 (4th
Cir. 1999). The "taking" element of § 2119 is satisfied when defen-
dant takes control of the victim’s vehicle, even if he does not force
him to relinquish it. See, e.g., United States v. Moore, 73 F.3d 666,
669 (6th Cir. 1996).
The evidence that Foster placed a gun to Rhodes’ head and ordered
both Rhodes and Morris out of the car permitted the jury to conclude
that Foster obtained control of Rhodes’ car. This conclusion is further
buttressed by other evidence, such as Foster’s statement to Rhodes
after Rhodes attempted to reenter the car,"[n]o, you’re not getting
back in my car," (J.A. 1027) (emphasis added), and the evidence that
the car was recovered a month later. All of this evidence allowed the
jury to infer that, at the moment Foster obtained control of Rhodes’
car, he possessed the intent to seriously harm or kill Rhodes if neces-
sary to obtain control of the car. Cf. United States v. Harris, 420 F.3d
467, 474-78 (5th Cir. 2005) (carjacking conviction could not stand
where evidence did not establish that force was the means of stealing
the car); United States v. Lebron-Cepeda, 324 F.3d 52, 57 (1st Cir.
2003) (intent element satisfied where one defendant placed a gun
against the driver’s head and threatened him at the inception of the
carjacking, thereby permitting the inference that the defendant would
have shot the driver had the driver failed to relinquish control of the
car); United States v. Adams, 265 F.3d 420, 424 (6th Cir. 2001) (evi-
dence sufficient to support intent finding where the defendant threat-
UNITED STATES v. FOSTER 19
ened and then physically touched the carjacking victims with his
gun); Applewhaite, 195 F.3d at 685 (carjacking conviction could not
stand where evidence did not establish that force was used to obtain
the victim’s van); United States v. Lake, 150 F.3d 269, 272 (3d Cir.
1998) (evidence sufficient to support intent finding where defendant
placed a gun near the head of the victim and asked for her keys).
Accordingly, we conclude the evidence in the record is sufficient to
support Foster’s carjacking conviction.
C
Foster and Taylor also challenge the sufficiency of the evidence to
support their witness tampering convictions under 18 U.S.C.
§ 1512(b)(3).9 At trial, the government presented evidence that, in
April 2002, Foster and Taylor attempted to kidnap Wilder and bring
him to Moses’s state court trial in order to intimidate Wilder’s friend,
Brockington, who was expected to testify against Moses. The govern-
ment’s evidence further showed that the federal investigation into
drug dealing and the related violence in the Lexington Terrace neigh-
borhood started in the fall of 2001 and that the homicides that were
the subject of the state court trial against Moses were within the scope
of that investigation.
Our leading case on the reach of § 1512(b)(3) is United States v.
Perry, 335 F.3d 316 (4th Cir. 2003). In that case, the defendant was
charged with violating § 1512(b)(3) after he had been arrested in
Maryland by Montgomery County police officers for various weapons
violations stemming from his possession in his vehicle of, among
9
Section 1512(b)(3)provides, in relevant part:
Whoever knowingly uses intimidation or physical force, threat-
ens, or corruptly persuades another person, or attempts to do so,
or engages in misleading conduct toward another person, with
intent to . . . hinder, delay, or prevent the communication to a
law enforcement officer or judge of the United States of informa-
tion relating to the commission or possible commission of a Fed-
eral offense or a violation of conditions of probation, parole, or
release pending judicial proceedings . . . shall be fined under this
title or imprisoned not more than ten years, or both.
18 U.S.C. § 1512(b)(3).
20 UNITED STATES v. FOSTER
other things, a loaded handgun with an obliterated serial number.
Perry, 335 F.3d at 318. The defendant told the officers that, if they
would throw away the gun, he would give them certain information.
Id. The defendant lied to the officers about his name and birth date.
Id.
On the appeal following his conviction, the defendant argued that
the government failed to prove that, in lying to the police officers
about his name and birth date, he intended to prevent the communica-
tion of information to federal officers relating to the possible commis-
sion of a federal offense. Id. at 320. In analyzing this contention, we
explained that the jurisdictional basis for § 1512(b)(3) is "the federal
interest of protecting the integrity of potential federal investigations
by ensuring that transfers of information to federal law enforcement
. . . relating to the possible commission of federal offenses be truthful
and unimpeded." Perry, 335 F.3d at 321 (citation and internal quota-
tion marks omitted). We went on to conclude that § 1512(b)(3)
required the government only to "establish that the defendants had the
intent to influence an investigation that happened to be federal."
Perry, 335 F.3d at 321 (citation and internal quotation marks omit-
ted). We held that the government had met that standard because it
showed that a portion of the potential investigation that the defendant
intended to impede—the "investigation into Perry’s status as a felon
in possession of a firearm"—was federal in nature. Id. Thus, even
though no federal investigation had begun at the time the defendant
committed his obstructive act and even assuming that he was not
aware "that a portion of the firearms investigation would be federal,"
the government’s evidence was sufficient to support his conviction.
Id. at 321-22. In so holding, we rejected the defendant’s contention
that "the Government, in order to obtain a conviction . . . , was
required to show that the MCPD was, at the time of the arrest, cooper-
ating in an ongoing federal investigation or in the investigation of a
federal offense." Id. at 322 n.9. We added that § 1512(b)(3) "does not
require that . . . communication with federal officers be . . . immi-
nent." Perry, 335 F.3d at 322 n.9 (citation and internal quotation
marks omitted). We also rejected the defendant’s suggestion that
§ 1512(b)(3) requires "that federal officials actually receive the mis-
leading information," noting that the statute "applies to one who
engages in misleading conduct with an intent to ‘hinder, delay, or pre-
vent’ communication with federal law enforcement officers. It does
UNITED STATES v. FOSTER 21
not require that the individual have succeeded." Perry, 335 F.3d at
322 n.9.
Foster and Taylor contend that their witness tampering convictions
under § 1512(b)(3) must be reversed because their convictions rest
"on an inadequate nexus to a federal investigation." Appellants’ Br.
at 47. According to Foster and Taylor, there was no federal nexus
because: "(1) the federal investigation did not exist at the time of the
alleged act; (2) the ‘victim’ was not aware that he was part of a fed-
eral investigation; and (3) there was no objective reason to think" that
a federal investigation would be influenced. Appellants’ Br. at 47-48.
Our decision in Perry disposes of these contentions. As recognized
in Perry, a federal investigation was not necessary at the time Foster
and Taylor attempted to bring Wilder to state court to influence
Brockington’s testimony. 335 F.3d at 321-22. In any event, the gov-
ernment’s evidence at trial demonstrated that a federal investigation
into drug dealing and related violence had begun in Lexington Ter-
race in the fall of 2001. Nor was the government required to prove
that Foster or Taylor were aware of that federal investigation. Id. at
322 n.9. Finally, there simply is no merit to Foster and Taylor’s con-
tention that by their actions they did not attempt to influence a federal
investigation. Based on the evidence before it, the jury was entitled
to conclude that Foster and Taylor attempted to kidnap Wilder with
the intent to hinder or prevent Brockington from further communicat-
ing with law enforcement authorities, including federal law enforce-
ment authorities. Cf. United States v. Harris, 498 F.3d 278, 286 (4th
Cir. 2007) (in affirming convictions under 18 U.S.C.
§§ 1512(a)(1)(C) and (a)(2)(C), court noted that a "portion of the
potential investigation that [the defendants] sought to prevent ‘hap-
pened to be federal’ because drug trafficking is a federal offense. That
McAbier had communicated previously with local law enforcement
and that those communication[s] had not spawned a federal investiga-
tion are red herrings here").
V
As part of its charge to the jury on the drug conspiracy count, the
district court instructed the jury to determine, in the event they found
a particular defendant guilty of participating in the charged conspir-
22 UNITED STATES v. FOSTER
acy, the amount of crack "involved in the conspiracy." (J.A. 1720).
The jury was given three choices in the court’s instructions as to crack
amounts, "50 grams or more, five grams or more, but less than 50
grams, or less than five grams of crack cocaine." (J.A. 1720). Consis-
tent with the court’s instructions, the verdict form asked the jury to
determine the amount of crack "attributable to the conspiracy." (J.A.
2070). As to each defendant, the jury found that the conspiracy
involved fifty or more grams of crack. In sentencing each defendant
to life imprisonment on the drug conspiracy count, the court found
that each defendant was responsible for more than fifty grams of
crack.
The defendants contend that the district court should have
instructed the jury that, in determining the drug quantity attributable
to each defendant, the jury must determine the quantity that was in
furtherance of the conspiracy and reasonably foreseeable to each
defendant as opposed to the conspiracy as a whole. The defendants
posit that such a failure by the court below runs afoul of the principles
laid out in our decision in United States v. Collins, 415 F.3d 304, 314
(4th Cir. 2005).
Because the defendants failed to raise this Collins issue in the dis-
trict court, our review is for plain error. United States v. Olano, 507
U.S. 725, 732 (1993). On plain error review, we will reverse the dis-
trict court only if we (1) identify an error, (2) which is plain, (3)
which affects substantial rights, and (4) which seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id. A
defendant found guilty under 21 U.S.C. § 846 is "subject to the same
penalties as those prescribed for the offense, the commission of which
was the object of the . . . conspiracy." 21 U.S.C. § 846. Since a viola-
tion of 21 U.S.C. § 841(a)(1) was the object of the conspiracy, the
defendants are subject to the penalties outlined in 21 U.S.C. § 841(b).
Section 841(b) of Title 21 sets forth a graduated penalty scheme
based on the quantity of drugs attributable to the defendant. See id.
§ 841(b) (setting forth statutory minimums and maximums based on
drug amounts). In Collins, we addressed the issue of whether a defen-
dant found guilty of a conspiracy to violate § 841(a) should be sen-
tenced under § 841(b) by considering the amount of drugs distributed
by the entire conspiracy. Collins, 415 F.3d at 312. We answered this
UNITED STATES v. FOSTER 23
question in the negative, holding that such a sentence should be more
individualized, subjecting the defendant to punishment only for distri-
bution of the amount of drugs "attributable to him." Id.
Our decision in Collins relied on previous decisions of the Supreme
Court and this court. For example, we first looked to our prior deci-
sion in United States v. Irvin, 2 F.3d 72 (4th Cir. 1993), where we
held that the "most reasonable interpretation of the relevant statutory
provisions requires a sentencing court to assess the quantity of narcot-
ics attributable to each coconspirator by relying on the principles set
forth in Pinkerton [v. United States, 328 U.S. 640 (1946)]." Irvin, 2
F.3d at 77; see also id. at 76 ("[T]he statutes require a district court
to determine the accountability of each coconspirator for each object
offense and the quantity of narcotics involved in each object offense
using the principles of Pinkerton.").10 We went on to explain in Col-
lins that, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000) and
United States v. Promise, 255 F.3d 150 (4th Cir. 2001), the holding
of Irvin was modified "by effectively replacing the words ‘a district
court’ with ‘the jury,’ and requiring proof beyond a reasonable
doubt." Collins, 415 F.3d at 314.11 Thus, under Collins, a district court
10
In Pinkerton v. United States, 328 U.S. 640 (1946), the Supreme
Court reviewed the law of conspiracy as it related to the liability of one
conspirator for the substantive acts of another conspirator. The Court
concluded that acts in furtherance of the conspiracy are "attributable to
the others for the purpose of holding them responsible for the substantive
offense." Id. at 647. The Court went on to note that a "different case
would arise if the substantive offense committed by one of the conspira-
tors was not in fact done in furtherance of the conspiracy, did not fall
within the scope of the unlawful project, or was merely a part of the ram-
ifications of the plan which could not be reasonably foreseen as a neces-
sary or natural consequence of the unlawful agreement." Id. at 647-48.
Thus, in addition to the requirement that acts be done in furtherance of
the conspiracy, to be attributable to another conspirator, the acts must be
reasonably foreseen as a necessary or natural consequence of the unlaw-
ful agreement.
11
In Apprendi, the Supreme Court held that, "[o]ther than the fact of
a prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt." 530 U.S. at 490. Applying the
24 UNITED STATES v. FOSTER
must "instruct a jury to use Pinkerton principles" when determining
the amount of drugs attributable to any one defendant in a drug con-
spiracy. Id. In other words, in order for the statutory maximums and
mandatory minimums of § 841(b) to apply in a drug conspiracy case,
the jury must determine that the threshold drug amount was reason-
ably foreseeable to the individual defendant.12
In this case, the jury never determined the individualized quantity
of crack attributable to each defendant for the penalty purposes of
Apprendi holding in Promise, we held that "Apprendi dictates that in
order to authorize the imposition of a sentence exceeding the maximum
allowable without a jury finding of a specific threshold drug quantity, the
specific threshold quantity must be treated as an element of an aggra-
vated drug trafficking offense, i.e., charged in the indictment and proved
to the jury beyond a reasonable doubt." Promise, 255 F.3d at 156-57.
12
We recognize that other courts have held that, in drug conspiracy
cases, the jury is not required to determine the amount of drugs attribut-
able to individual coconspirators; rather, a jury’s finding of drug amounts
for the conspiracy as a whole sets the maximum sentence that each
coconspirator could be given. See, e.g., United States v. Stiger, 413 F.3d
1185, 1192-93 (10th Cir. 2005) (collecting cases). Because the subse-
quent attribution of drug amounts to an individual coconspirator cannot
increase his maximum sentence, these courts reason that the sentencing
court "may determine the drug quantity attributable to that defendant and
sentence him accordingly (so long as the sentence falls within the statu-
tory maximum made applicable by the jury’s conspiracy-wide drug
quantity determination." Derman v. United States, 298 F.3d 34, 43 (1st
Cir. 2002). In other words, under this approach, the jury sets the maxi-
mum sentence (or ceiling) under which each coconspirator’s sentence
must fall, but the court may determine the floor by finding the precise
drug quantity attributable to each coconspirator. United States v. Knight,
342 F.3d 697, 711 (7th Cir. 2003). Consequently, the jury is not required
to make individualized findings as to each coconspirator because "[t]he
sentencing judge’s findings do not, because they cannot, have the effect
of increasing an individual defendant’s exposure beyond the statutory
maximum justified by the jury’s guilty verdict." Id. We express no opin-
ion on the strength of the reasoning of these cases. Collins is the law in
our circuit, and, as a panel of this court, we are bound to follow it. See
United States v. Chong, 285 F.3d 343, 346 (4th Cir. 2002) (holding that
one panel of this court cannot overrule another).
UNITED STATES v. FOSTER 25
§ 841(b) and simply determined the amount of crack "attributable to
the conspiracy." (J.A. 2070). Because the jury was not properly
instructed under Collins, the defendants’ jury did not properly deter-
mine the statutory threshold quantity of crack attributable to each of
them. Accordingly, the first two prongs of Olano (error and plainness)
are satisfied.
The third inquiry under Olano is whether the plain error affected
the defendant’s substantial rights. According to the Olano Court, the
error "must have affected the outcome of the district court proceed-
ings." 507 U.S. at 734. In this case, the defendants each received life
sentences on the drug conspiracy count. Moses and Taylor also
received life sentences on other counts of conviction; Moses received
three life sentences for his § 924(j) convictions related to the murders
of Spain, Harris, and McManus, and Taylor received a life sentence
for his § 924(j) conviction related to the murder of McManus. Foster
did not receive a life sentence on any other count of conviction;
rather, he was sentenced to thirty-two years on his other counts of
conviction (twenty-five years’ imprisonment on his carjacking con-
viction plus a seven year consecutive sentence for his § 924(c) con-
viction, with the ten-year witness tampering sentence to be served
concurrently).
In view of the life sentences Moses and Taylor received on other
counts of conviction, they cannot establish that their substantial rights
were affected by the Collins error. See United States v. Ellis, 326 F.3d
593, 599-600 (4th Cir. 2003) (holding that sentence exceeding statu-
tory maximum by twenty years did not affect substantial rights
because defendant received equal or longer concurrent sentences on
other counts). Because Foster’s life sentence on the drug conspiracy
count exceeds the twenty-year statutory default maximum sentence,
see 21 U.S.C. § 841(b)(1)(C) (setting twenty-year maximum sentence
for crack offenses of less than five grams), his substantial rights were
affected by the Collins error. Cf. Promise, 255 F.3d at 160-61 (hold-
ing that a sentence in excess of the authorized statutory maximum to
which a defendant would not otherwise be subject affects his substan-
tial rights). Consequently, in Foster’s case, we must decide whether
to exercise our discretion to notice the Collins error.
In United States v. Cotton, the Supreme Court held that the govern-
ment’s error in failing to allege a drug quantity in the indictment did
26 UNITED STATES v. FOSTER
not seriously affect the fairness, integrity, or public reputation of judi-
cial proceedings because the evidence that the conspiracy at issue
involved at least fifty grams of crack, the minimum drug quantity
required to support the enhanced sentence imposed by the district
court, "was overwhelming and essentially uncontroverted." 535 U.S.
625, 633 (2002) (internal quotation marks omitted). As in Cotton, the
evidence evidencing that Foster was responsible for in excess of fifty
grams of crack was overwhelming and essentially uncontroverted.
The government’s evidence overwhelmingly established that he was
a major player in the distribution of crack in Lexington Terrace. He
sold crack, occasionally managed other dealers, and was an enforcer,
willing to employ violence if needed, whether it was carjacking in the
case of Rhodes or witness tampering in the case of attempting to kid-
nap Wilder. Although Foster was incarcerated during part of the
charged time frame of the conspiracy, the violence employed by him
allowed the lucrative drug trade in Lexington Terrace, where perhaps
over fifty grams of crack were sold on a daily basis, to continue for
a substantial period of time. Moreover, although Foster challenged the
government’s case against him, he primarily focused on whether he
committed the offenses and not on the drug quantities reasonably
foreseeable to him. Unquestionably, if the jury was properly
instructed per Collins, the government’s overwhelming evidence of
the substantial quantities of crack reasonably foreseeable to Foster
would have set the maximum sentence at life imprisonment, 21
U.S.C. § 841(b)(1)(A). Thus, the situation here is analogous to Cot-
ton. Cf. United States v. Smith, 441 F.3d 254, 272-73 (4th Cir. 2006)
(declining to notice Booker error where the jury, having convicted the
defendant of various drug offenses, would have found the specific
drug amounts charged in the indictment by relying on the testimony
proffered by several witnesses). In short, if we disturbed Foster’s sen-
tence on the drug conspiracy count, we would seriously affect the
fairness, integrity, and public reputation of judicial proceedings.
VI
The defendants raised several additional arguments which they
contend should be resolved in their favor. We have reviewed these
arguments and find them to be without merit. Accordingly, for the
reasons stated herein, the judgments of the district court are affirmed.
AFFIRMED