UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4811
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
YVONNE MARIE FOUNTAIN,
Defendant - Appellant.
No. 09-4835
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNETH LEE FOSTER,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:09-cr-00013-MR-DLH-9; 1:09-cr-00013-MR-DLH-
8)
Argued: January 28, 2011 Decided: March 14, 2011
Before WILKINSON, AGEE, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Samuel Bayness Winthrop, WINTHROP & WINTHROP,
Statesville, North Carolina; Sherlock Valentino Grigsby, LAW
OFFICE OF SHERLOCK GRIGSBY, Washington, D.C., for Appellants.
Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY,
Asheville, North Carolina, for Appellee. ON BRIEF: Anne M.
Tompkins, United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Yvonne Marie Fountain and Kenneth Lee Foster
(collectively “the Defendants”) appeal from their convictions
following a joint jury trial and from the sentences imposed by
the district court. On appeal, they argue: (1) the district
court erred in denying their motions to sever and motions to
suppress; (2) there was insufficient evidence to sustain their
drug conspiracy convictions; and (3) the district court erred at
sentencing. For the reasons set forth below, we affirm the
judgment of the district court in both cases.
I.
The Defendants were charged, along with a number of
co-defendants and co-conspirators, with conspiring to possess
with intent to distribute cocaine base (“crack cocaine”), in
violation of 21 U.S.C. §§ 846 and 841(a)(1). They were tried
jointly, along with a co-conspirator, Perry Roger Shippy. The
jury returned guilty verdicts as to all three defendants on the
conspiracy charge. The jury also found Foster and Shippy guilty
of knowingly using a communication facility to further a drug
offense, in violation of 21 U.S.C. § 843(b). 1
1
Fountain was also charged with the Section 843(b) offense,
but the government conceded that Fountain’s motion for judgment
(Continued)
3
The evidence regarding the crack cocaine conspiracy
was gathered initially by investigators using traditional
investigative techniques, including controlled purchases of
crack cocaine, use of confidential sources, physical
surveillance, and traffic stops after suspected drug purchases.
After discovering that the conspiracy was likely widespread and
involved large amounts of crack cocaine, investigators later
sought and obtained a wiretap order, subsequently extended by
the district court, in order to intercept communications from
telephone numbers believed to be utilized by Foster. The
wiretaps were sought so that investigators could identify
Foster’s sources of supply and additional distributors and also
after agents had encountered difficulties with physical
surveillance.
The Defendants were arrested when search warrants were
executed at their respective residences. During the search of
the residence Fountain shared with her boyfriend, Dennis Lamar
Bruton, 2 investigators found Fountain in a bathroom accessible
from the master bedroom, where Bruton was located. Officers had
as to that count should be granted. It was not submitted to the
jury.
2
Bruton, who was indicted as a co-defendant, pled guilty to
the conspiracy charge.
4
to use force to open both the bedroom and bathroom doors. Once
officers forcibly entered the bathroom, Fountain was found
standing next to the toilet with chunks of crack cocaine on the
toilet seat, in the toilet, and on the floor beside the toilet.
Additionally, although Fountain stated that she had just taken a
shower, she was wearing pajamas, had a nightgown on over the
pajamas, and was dry. Agents recovered from her residence
almost 200 grams of crack cocaine, including 92.2 net grams of
crack cocaine in the master bathroom. Agents also discovered 23
grams of marijuana, a scale, a box of ammunition, and more than
$20,000 in United States currency. 3
The evidence against Foster was significant. The jury
heard that Foster received large quantities of cocaine from
suppliers, “cooked” or converted the powder into crack cocaine
and sold it to numerous individuals. He engaged in multiple
daily crack cocaine transactions over the course of many months.
When the search warrant was executed at his home in February
2009, more than 150 net grams of crack cocaine, more than 500
3
In addition to Fountain’s conduct during the execution of
the search warrant and evidence seized from her home, evidence
of Fountain’s participation in the conspiracy also included her
being observed by a detective in August 2008 leaving her
residence, walking to an automobile parked outside, sitting in
the automobile for approximately two minutes, and then exiting
with a large amount of cash in her left hand. Although Fountain
asserts on appeal that this transaction was not drug-related,
the jury was entitled to infer otherwise.
5
net grams of powder cocaine, and over $5,000 in cash were
seized, as well as various materials used to convert powder
cocaine to crack cocaine.
The only evidence of direct communications between
Foster and Fountain involved four phone calls, but none of these
conversations were related to drug transactions. There were
significant drug-related contacts, however, between Foster and
Bruton. Intercepted wire communications revealed Bruton and
Foster repeatedly conversed about the large-scale distribution
of controlled substances.
Upon return of the guilty verdicts by the jury, the
district court sentenced Fountain to the mandatory statutory
minimum of 240 months. Foster was sentenced to 360 months on
the conspiracy count and 96 months on the § 843(b) offense, to
be served concurrently. Both defendants noted timely appeals.
This Court has jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742.
II.
A.
The Defendants argue that the district court erred in
failing to grant their motions to sever. They had requested
separate trials and to be tried separately from Shippy, who had
been charged in a separate indictment but was alleged to be part
6
of the same conspiracy. In denying the motions to sever and
granting the Government’s motion for joinder, the district court
specifically found both that the conspiracy alleged could have
been brought in a single indictment and that a joint trial did
not appear to pose a risk of prejudice to any defendant’s right
to a fair trial.
We review a district court’s decision to deny a motion
to sever for abuse of discretion. United States v. Singh, 518
F.3d 236, 255 (4th Cir. 2008). While severance of trials for
defendants named in the same indictment is permitted if joinder
“appears to prejudice a defendant,” Fed. R. Crim. P. 14, joint
trials of defendants who are indicted together are preferred.
Zafiro v. United States, 506 U.S. 534, 537 (1993). Accordingly,
“a district court should grant a severance under Rule 14 only if
there is a serious risk that a joint trial would compromise a
specific trial right of one of the defendants, or prevent the
jury from making a reliable judgment about guilt or innocence.”
Id. at 539. In a conspiracy case, moreover, “[j]oinder is
particularly favored.” United States v. Montgomery, 262 F.3d
233, 244 n.5 (4th Cir. 2001) (citation omitted).
The record here supports the district court’s decision
to deny the motions to sever. Having been indicted together,
neither Fountain nor Foster demonstrated a strong showing of
prejudice from a joint trial as required for severance under
7
Rule 14. See United States v. Mir, 525 F.3d 351, 357 (4th Cir.
2008). As to Shippy being tried with them, while he was charged
in a separate indictment, he was charged with conspiring with
Foster and Bruton (as well as other co-conspirators) and over
the same period of time and in the same geographic area as
Fountain and Foster. Thus, he could have been charged in the
same indictment and joinder was permissible. See Fed. R. Crim.
P. 13. Again, no showing of prejudice from the joinder has been
made. Especially in light of the preference for joinder in
conspiracy cases, the district court did not abuse its
discretion in allowing Shippy to be tried with Fountain and
Foster.
B.
Foster next challenges the district court’s denial of
his motion to suppress evidence seized at his residence which he
contends was based on a defective search warrant. The
Defendants also challenge the district court’s denial of their
motions to suppress evidence obtained through the wiretap
orders.
Foster first argues that his motion to suppress should
have been granted because the search warrant was based on
“stale” evidence. There is no merit in his contention. Special
Agent Dan Guzzo’s affidavit, which was offered to establish
8
probable cause for the warrant, sets forth a number of facts
that support a finding that contraband was reasonably likely to
be found in Foster’s residence on February 2, 2009. 4 See, e.g.,
J.A. at 33, 35 (surveillance demonstrated Foster conducted daily
crack cocaine distribution activities out of his home, from
October 24, 2008 to February 2, 2009, and “intercepted wire
communications” revealed Bruton and Foster had repeated
discussions about the distribution of controlled substances,
including one on January 26, 2009). No error has been shown as
to the warrant’s issuance or the district court’s denial of
Foster’s motion to suppress.
Regarding the challenges to the wiretap orders, we
address only those issues raised by the Defendants in their
opening brief; the remainder are deemed waived. See Cavallo v.
Star Enter., 100 F.3d 1150, 1152 n.2 (4th Cir. 1996) (“[A]n
issue first argued in a reply brief is not properly before a
court of appeals.”). In their opening brief, the Defendants
make two challenges to the initial wiretap warrant and the
denial of their motions to suppress evidence obtained through
the wiretap warrants. 5 First, they contend that the wiretap
4
Guzzo’s affidavit was signed and sworn on February 2,
2009, the same date the warrant was issued.
5
In two separate footnotes in their opening brief, Foster
and Fountain attempt to raise additional challenges. Because
(Continued)
9
applications were not supported by a full and completed
statement of the facts, pointing to the application of AUSA Rose
as lacking in such detail. Second, they argue that the
necessity requirement was not met.
As to the contention that the wiretap application did
not comply with 18 U.S.C. § 2518(1)(c) because it did not
contain a “full and complete statement” of the facts, the
Defendants claim that our review is limited to AUSA Rose’s
application and that Guzzo’s affidavit, although it was
incorporated by reference, cannot be considered. 6 In particular,
they allege that defense counsel did not have access to Guzzo’s
affidavit. There is nothing in the record and the Defendants
cite to nothing, however, to support their assertion that trial
counsel did not have a copy of the affidavit or could not have
obtained it, had it been requested. Moreover, it is undisputed
that the district court had Guzzo’s affidavit when it issued the
wiretap warrant. Thus, we may consider Guzzo’s affidavit in
determining whether the application complied with § 2518(1)(c).
neither is adequately briefed, we deem these issues abandoned.
In any event, we have reviewed those challenges and conclude
they are without merit.
6
Guzzo’s affidavit is in the supplemental joint appendix
and is properly before this Court. Additionally, the district
court had the affidavit before it when it issued its wiretap
order.
10
Review of the application and Guzzo’s affidavit clearly
demonstrates that the “full and complete” information required
by § 2518(1) was supplied to the court. No error has been
shown.
As to the related challenge, i.e., that the
applications did not contain the requisite showing of necessity,
we find no abuse of discretion. See United States v. Wilson,
484 F.3d 267, 280 (4th Cir. 2007) (determination of “necessity”
under 18 U.S.C. § 2518(3)(c) for issuance of a wiretap warrant
is reviewed for abuse of discretion). In Wilson, the Fourth
Circuit explained the necessity requirement as follows:
Congress has placed a burden on the Government to show
the “necessity” of any wiretap application via a full
and complete statement as to whether “normal
investigative procedures have been tried and have
failed or reasonably appear to be unlikely to succeed
if tried or to be too dangerous.” 18 U.S.C. § 2518(3).
The burden that this provision imposes on the
Government, however, is not great, and the adequacy of
such a showing is to be tested in a practical and
commonsense fashion that does not hamper unduly the
investigative powers of law enforcement agents.
Although wiretaps are disfavored tools of law
enforcement, the Government need only present specific
factual information sufficient to establish that it
has encountered difficulties in penetrating the
criminal enterprise or in gathering evidence [such
that] wiretapping becomes reasonable.
Wilson, 484 F.3d at 281 (citations and quotations omitted);
brackets in original.
The Defendants contend that the government did not
meet the necessity requirement because investigators were in
11
fact successful in identifying certain co-conspirators and in
conducting some controlled buys and drug seizures leading to
arrests. Thus, they argue other investigative techniques were
sufficient. We disagree. The investigation here was of a
large-scale conspiracy with an extended network of suppliers and
purchasers. Guzzo’s affidavit contains more than nine pages
devoted to explaining why alternative measures had either been
tried and failed, or appeared unlikely to succeed, and that
explanation contains information particular to this case.
In reviewing the adequacy of the showing here in “a
practical and commonsense fashion . . . that does not ‘hamper
unduly the investigative powers of law enforcement agents,’”
United States v. Smith, 31 F.3d 1294, 1297 (4th Cir. 1994)
(citation omitted), we conclude that the showing of necessity
was sufficient. The district court did not abuse its discretion
in issuing the initial wiretap order or in denying the motion to
suppress.
C.
Both Fountain and Foster argue there was insufficient
evidence to support their convictions. Fountain argues that
there was only “threadbare” circumstantial evidence to find she
knowingly participated in a conspiracy. The Defendants also
argue that the evidence adduced at trial was insufficient to
12
prove they knowingly participated in a single conspiracy.
Instead, they contend that “the evidence merely shows multiple
buyer and seller relationships without an understanding or
agreement between the various parties.” Appellants’ Br. at 31. 7
A jury’s guilty verdict will be upheld if, viewing the
evidence in the light most favorable to the Government, a
rational factfinder could have found each element of the charged
offense beyond a reasonable doubt. United States v. Madrigal-
Valadez, 561 F.3d 370, 374 (4th Cir. 2009). An appellate court
“may not weigh the evidence or review the credibility of the
witnesses” because “[t]hose functions are reserved for the
jury.” United States v. Wilson, 118 F.3d 228, 234 (4th Cir.
1997). “A defendant challenging the sufficiency of the evidence
faces a heavy burden.” United States v. Foster, 507 F.3d 233,
245 (4th Cir. 2007).
Fountain argues that the evidence against her was
scant and insufficient to find she was a participant in the
conspiracy. We disagree and conclude there was substantial
evidence to support the jury’s guilty verdict. In short, there
7
In a related argument, the Defendants claim that the
government’s use of “multiple conspiracies as evidence to
support an indictment for a single conspiracy” is a material
variance. Appellants’ Br. at 34. Because we conclude that the
jury’s finding of a single conspiracy is supported by
substantial evidence, there was no variance.
13
was no clear failure by the prosecution here. See Foster, 507
F.3d at 244-45.
We likewise find unconvincing the argument that there
was insufficient evidence of a single conspiracy. Under this
Court’s precedent, “trial evidence is sufficient to establish a
single conspiracy where the conspirators are shown to share the
same objectives, the same methods, the same geographic spread,
and the same results.” United States v. Smith, 451 F.3d 209,
218 (4th Cir. 2006); United States v. Jeffers, 570 F.3d 557, 567
(4th Cir. 2009) (“[A] single conspiracy exists, when the
conspiracy had the same objective, it had the same goal, the
same nature, the same geographic spread, the same results, and
the same product.”)(citation omitted). Furthermore, “a defendant
may be convicted of conspiracy with little or no knowledge of
the entire breadth of the criminal enterprise[.]” United States
v. Burgos, 94 F.3d 849, 858 (4th Cir. 1996) (en banc). This is
particularly true in “contemporary drug conspiracies” which may
“frequently . . . result[] in only a loosely-knit association of
members linked only by their mutual interest in sustaining the
overall enterprise of catering to the ultimate demands of a
particular drug consumption market . . . .” United States v.
Banks, 10 F.3d 1044, 1054 (4th Cir. 1993).
At trial, the jury heard evidence that Foster had
continuing drug-related relationships with numerous individuals
14
whose concerted efforts resulted in the distribution of large
quantities of crack cocaine in western North Carolina. The jury
also heard evidence from which it could infer that Bruton was a
participant in a conspiracy with Foster, a conspiracy to which
Bruton pled guilty. The jury could also infer that Fountain was
aware of and assisted Bruton in this drug-dealing based on her
conduct when the search warrant was executed at her residence
and her August 2008 cash transaction. A reasonable jury could
construe her acts after the search warrant was executed as an
attempt to destroy evidence of the conspiracy of which she was a
part.
Having reviewed the trial record and keeping in mind
that the “jury, not the reviewing court, weighs the credibility
of the evidence and resolves any conflicts in the evidence
presented,” Burgos, 94 F.3d at 862 (internal quotation mark and
citation omitted), we conclude that there was sufficient
evidence from which the jury could conclude that Fountain and
Foster were part of a single charged conspiracy. Therefore, the
challenges raised to their convictions fail.
D.
Foster raises three challenges to his sentence.
First, he argues the district court erred in applying a
leadership enhancement pursuant to U.S.S.G. § 3B1.1. Second, he
15
argues his sentence is procedurally unreasonable due to the
district court’s failure to adequately explain the sentence
imposed. Third, he contends the district court failed to
address his argument that he was entitled to a sentence below
the advisory guideline range both: (1) because his criminal
history category and status as a career offender overstated his
criminal record; and (2) because of the disparity inherent in
the guidelines between sentences for offenses involving crack
cocaine and offenses involving powder cocaine. 8
With regard to the district court’s imposition of a
leadership adjustment for Foster, that decision is a “factual
determination reviewed for clear error.” United States v.
Kellam, 568 F.3d 125, 147-48 (4th Cir. 2009) (citation omitted).
In order for the four-level role adjustment in U.S.S.G.
§ 3B1.1(a) to apply, the court must find that a defendant was
“an organizer or leader of a criminal activity that involved
five or more participants or was otherwise extensive.” Both the
8
Fountain also challenges on appeal the district court’s
refusal to impose a below-guidelines sentence based on the
crack-powder cocaine disparity. Like Foster’s, her claim is
unreviewable. (See infra at 18.) Additionally, because Fountain
was sentenced to the mandatory minimum sentence as set forth in
the statute of conviction, the district court could not have
imposed a sentence lower than what she received. See Kimbrough
v. United States, 552 U.S. 85, 106-08 (2007)(district courts may
deviate from the guidelines based on disagreements with the
crack/powder ratio, but remain bound by statutory mandatory
minimum sentences).
16
trial evidence and a review of the facts of the offense as set
forth in the Presentence Investigation Report show that the
district court’s finding was not clearly erroneous. We
therefore reject this claim.
While the parties disagree as to the proper standard
of review for Foster’s claim that the court failed to adequately
explain his sentence, we need not resolve the dispute.
Regardless of which standard is applied, no error or abuse of
discretion has been shown. It is procedural error to “fail[] to
adequately explain the chosen sentence—including an explanation
for any deviation from the Guidelines range.” Gall v. United
States, 552 U.S. 38, 51 (2007). In this case, the 360-month
sentence imposed was the bottom end of the advisory guideline
range; thus, the explanation required need not be “elaborate or
lengthy.” United States v. Hernandez, 603 F.3d 267, 271 (4th
Cir. 2010). The court must, however, “make an individualized
assessment based on the facts presented” when imposing a
sentence within the proper guidelines range. Gall, 552 U.S. at
50.
Having reviewed the district court’s reasons for its
imposition of sentence, we find that explanation reflects that
the court was engaging in an individual analysis of Foster’s
offense and background and it explicitly addressed a number of
the § 3553(a) factors. Thus, we conclude the district court
17
gave sufficient explanation for its selection of Foster’s
sentence.
Foster’s final argument is that the district court
erred in refusing to downwardly depart, because of the crack-
powder cocaine disparity in the guidelines or because of an
overrepresented criminal history. That decision is not
reviewable on appeal absent some indication that the district
court “failed to understand its authority” to impose a lesser
sentence. United States v. Herder, 594 F.3d 352, 362 (4th Cir.
2010) (citation omitted). Nothing said by the district court in
Foster’s case suggests that it thought it could not depart from
the guidelines range. Thus, this Court may not presume that the
district court thought it lacked such authority. Id. (“[W]hen
the sentencing court is silent regarding its reason for refusing
a departure or a variance sentence, the appellate court is
precluded from inferring that the sentencing court believed that
it lacked the authority to do so.”) (citation omitted).
Accordingly, we do not review the district court’s decision not
to impose a sentence below the advisory guidelines range.
III.
For the aforementioned reasons, we affirm the
judgments of the district court.
AFFIRMED
18