United States v. Foy

FILED
United States Court of Appeals
Tenth Circuit

May 23, 2011
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 09-3314

SHEVEL M. FOY,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D. Ct. No. 07-20168-JWL)

Robert A. Ratliff, Mobile, Alabama, on the briefs, for Defendant-Appellant.

Barry R. Grissom, United States Attorney, and Terra D. Morehead, Assistant
United States Attorney, District of Kansas, Kansas City, Kansas, on the brief, for
Plaintiff-Appellee.

Before O’BRIEN, Circuit Judge, and SEYMOUR and TACHA, Senior Circuit
Judges.

TACHA, Circuit Judge.

After examining the briefs and the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

In 2009, a jury found defendant-appellant Shevel Foy guilty of: (1)

conspiring to manufacture, possess with intent to distribute, or to distribute

cocaine base and/or cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii),

(b)(1)(A)(iii), 846 and 18 U.S.C. § 2; and (2) attempting to possess with intent to

distribute between 500 grams and less than five kilograms of cocaine in violation

of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(ii), 846 and 18 U.S.C. § 2. The district court

imposed concurrent sentences of 360 months’ imprisonment for each charge. Mr.

Foy now appeals various aspects of his convictions and sentences. We take

jurisdiction under 28 U.S.C. § 1291. We AFFIRM Mr. Foy’s conviction and

sentence for conspiracy, but we VACATE his conviction and sentence for

criminal attempt due to improper venue.

I. BACKGROUND

Mr. Foy’s convictions stem from his participation in a vast conspiracy to

distribute cocaine and cocaine base in and around Kansas City, Kansas and

Kansas City, Missouri from January 2006 to November 2007. The Drug

Enforcement Administration (“DEA”) began investigating the conspiracy in 2006

at the request of the Leavenworth, Kansas police department. After attempting

various traditional investigative techniques (e.g., surveillance, confidential

informants, and search warrants) and finding them to be ineffective means of

uncovering the size and scope of the conspiracy, federal law enforcement officers

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decided to seek wiretaps.

By statute, before a law enforcement officer may submit a wiretap

application to a federal judge, he must obtain authorization from a statutorily

designated executive official or an executive official whom the Attorney General

designates, and he must identify the authorizing official in the application. See

18 U.S.C. § 2516(1) (listing the executive officers who may authorize a wiretap

application) and § 2518(1)(a) (requiring that all wiretap applications include “the

identity of . . . the officer authorizing the application”). In this case, the

investigating officers submitted multiple applications for wiretaps and for

extensions of wiretaps on the phones of various suspected conspirators from

August to October 2007. Each of these applications referenced an outdated

Attorney General Order (“AG Order”) delegating authority to the official who

authorized the application. Nevertheless, each wiretap application was approved

by the district judge considering it.

One of the telephones tapped by officers belonged to Mr. Foy’s co-

defendant, Monterial Wesley. The conversations intercepted from Mr. Wesley’s

phone revealed that he and Mr. Foy were partners in drug trafficking. For

instance, officers intercepted conversations in which Mr. Foy and Mr. Wesley: (1)

discussed pooling their money together to pay for large quantities of cocaine; (2)

discussed how to resolve an $8,000 deficiency in their payments to their drug

source, Thomas Humphrey; (3) coordinated the distribution of large amounts of

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fronted drugs; and (4) discussed absconding with large amounts of fronted drugs.

Additionally, while conducting surveillance, officers observed Mr. Foy at the

scene of multiple drug transactions between Mr. Wesley and Mr. Humphrey.

Once officers identified Mr. Foy as a participant in the conspiracy, they set

up a “pole camera” at his home in order to have twenty-four hour surveillance of

his residence. On October 17, 2007, the camera captured an attempted burglary at

Mr. Foy’s home. When officers arrived at the scene to investigate the burglary,

they observed a bullet hole in the front door and other bullet holes inside the

home. Additionally, officers intercepted a conversation between Mr. Foy and Mr.

Wesley shortly after the attempted burglary in which the two discussed whether

any money had been taken.

On November 27, 2007, officers arrested Mr. Wesley while he was

purchasing drugs from Mr. Humphrey at a car wash. The officers seized five

kilograms of cocaine from Mr. Humphrey’s vehicle, $2,294 from Mr. Wesley, and

a firearm from Mr. Wesley’s vehicle.

On February 1, 2008, Mr. Foy was charged along with twenty-three other

individuals in a 39-count superceding indictment. Specifically, Mr. Foy was

charged with: one count of conspiracy to manufacture, possess with intent to

distribute, or to distribute cocaine base and/or cocaine in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(A)(ii), (b)(1)(A)(iii), 846 and 18 U.S.C. § 2; three counts of

attempting to possess with intent to distribute five kilograms or more of cocaine

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in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(ii), 846 and 18 U.S.C. § 2; and

one count of using a communication device to facilitate a drug trafficking offense

in violation of 21 U.S.C. § 843(b).

Prior to trial, Mr. Foy filed a motion to suppress the evidence obtained

from the wiretaps. Principally, he argued that the wiretaps should be suppressed

because the officers incorrectly referenced the source of their authority to file the

wiretap applications and because wiretaps were not necessary to uncover the size

and scope of the conspiracy. The district court denied the motion, and at trial,

much of the government’s evidence against Mr. Foy consisted of the

incriminating conversations obtained from the wiretaps. The jury ultimately

found Mr. Foy guilty of the conspiracy and attempt charges, but it acquitted him

of the charge of using a communication device to facilitate a drug transaction.

Shortly after his conviction, Mr. Foy filed a motion for a new trial and a

motion for judgment of acquittal. In the motion for a new trial, Mr. Foy argued

that one of the jurors brought extrinsic evidence into the jury deliberations which

affected the verdict and prejudiced Mr. Foy. In the motion for judgment of

acquittal, Mr. Foy argued that the government failed to establish that the District

of Kansas was a proper venue for the prosecution of the charges against him. The

district court denied Mr. Foy’s motion for a new trial, denied his motion for

judgment of acquittal with respect to the conspiracy charge and one of the attempt

charges, but granted him acquittal on the other two attempt charges.

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 A Presentence Investigation Report (“PSR”) was prepared which

determined that Mr. Foy was accountable for at least 150 kilograms of cocaine,

giving him a base offense level of thirty-eight. See United States Sentencing

Guidelines (“U.S.S.G.” or “guidelines”) § 2D1.1(c)(1). The PSR then applied a

two-level enhancement under U.S.S.G. § 2D1.1(b)(1) for possession of a firearm

in connection with a drug trafficking offense. Combining the total offense level

of forty with Mr. Foy’s criminal history, which the PSR calculated to be category

I, the PSR recommended a guidelines range of 292 to 365 months’ imprisonment.

After hearing further testimony regarding Mr. Foy’s past drug trafficking activity,

the district court adopted the PSR’s findings and ultimately sentenced Mr. Foy to

concurrent sentences of 360 months’ imprisonment. This appeal followed.

II. DISCUSSION

A. Motion to Suppress

Mr. Foy first argues that the district court erred in denying his motion to

suppress evidence obtained from the wiretaps. Specifically, he contends that the

wiretap evidence should have been suppressed because: (1) the officers failed to

properly establish authorization in their wiretap applications; and (2) the

affidavits in support of the wiretaps did not establish necessity.

1. Misidentification of the Order Delegating Authority to Authorize

Wiretap Applications

As noted above, law enforcement officers must obtain authorization from

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an executive official before submitting a wiretap application to a federal judge,

and they must identify the authorizing official in the application itself. See 18

U.S.C. §§ 2516(1) and 2518(1)(a); see also United States v. Iiland, 254 F.3d

1264, 1267 (10th Cir. 2001) (setting forth the procedure for obtaining a wiretap

order). The Attorney General may specially designate certain executive officials

to authorize wiretap applications. 18 U.S.C. § 2516(1). When the Attorney

General delegates the power to authorize wiretap applications via an AG Order,

law enforcement officers reference the specific order in their wiretap applications.

Evidence obtained from a wiretap must be suppressed “if the disclosure of

that information would be in violation of [the wiretap statutes].” Id. § 2515.

Aggrieved persons may move to suppress such evidence when “the

communication was unlawfully intercepted” or “the order of authorization or

approval under which [the communication] was intercepted is insufficient on its

face.” Id. § 2518(10)(a)(i), (ii). 1

Not all deficiencies in wiretap applications, however, warrant suppression.

See United States v. Chavez, 416 U.S. 562, 574–75 (1974) (stating that not “every

failure to comply fully with any requirement provided in Title III would render

the interception of wire or oral communications ‘unlawful’”); cf. United States v.

1
Although Mr. Foy does not specify which provision of § 2518(10)(a) he is
invoking in support of his argument for suppression, it is clear that he does not invoke
provision (iii), which requires suppression when “the interception was not made in
conformity with the order of authorization or approval.”

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Radcliff, 331 F.3d 1153, 1160 (10th Cir. 2003) (refusing to suppress evidence

when deficiency in wiretap order “constituted a technical defect that did not

undermine the purposes of the statute or prejudice [the] [d]efendant”). Rather,

the critical inquiry is whether there has been a “failure to satisfy any of those

statutory requirements that directly and substantially implement the congressional

intention to limit the use of intercept procedures to those situations clearly calling

for the employment of this extraordinary investigative device.” United States v.

Giordano, 416 U.S. 505, 527 (1974).

The government concedes that each wiretap application submitted in

connection with this case referenced an outdated AG Order delegating power to

the executive official who authorized the application. Indeed, the government

readily acknowledges that each wiretap application referenced AG Order 2758-

2005, which, unbeknownst to the officers submitting the applications, had been

revoked and replaced by AG Order 2887-2007. Although the new order

technically rendered AG Order 2758-2005 void, it did not revoke the authority to

approve wiretap applications from any official who had been designated under the

prior order. Rather, AG Order 2887-2007 expanded the list of executive officials

empowered to authorize wiretap applications. Thus, although the wiretap

applications misstated the source of the officers’ authority to file them, they were

all in fact authorized by an executive official with the power to do so.

In Chavez, the Supreme Court held that the “[f]ailure to correctly report the

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identity of the person authorizing the [wiretap] application [] when in fact th[e]

Attorney General has given the required preliminary approval to submit the

application . . . does not warrant the suppression of evidence gathered pursuant to

a court order resting upon the application.” 416 U.S. at 571. In other words,

when the executive official who actually authorized a wiretap application had the

power to do so, a law enforcement officer’s failure to correctly identify the

official in the wiretap application does not require suppression. These are the

circumstances of this case. 2 Indeed, the officers’ reference to an outdated AG

Order was merely a technical defect which did not subvert the primary purposes

of the wiretap statute’s authorization requirement. See United States v. Jones,

600 F.3d 847, 853 (7th Cir. 2010) (holding that DEA’s reference to AG Order

2758-2005 rather than 2887-2007 was a “clerical error” which did not subvert the

“reviewing functions required by Congress”). Accordingly, the district court

correctly refused to suppress the wiretap evidence on this basis.

2. Necessity

All wiretap applications are subject to a necessity requirement which is

“designed to assure that wiretapping is not resorted to in situations where

traditional investigative techniques would suffice to expose the crime.” United

States v. Kahn, 415 U.S. 143, 153 n.12 (1974). Accordingly, every wiretap

2
Mr. Foy does not argue that the executive official who in fact authorized the
wiretap applications in this case was not empowered to do so.

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application must include “a full and complete statement as to whether or not other

investigative procedures have been tried and failed or why they reasonably appear

to be unlikely to succeed if tried or to be too dangerous.” 18 U.S.C. § 2518(1)(c).

A district judge may not approve a wiretap unless he finds that the applying

officers have met this standard. Id. § 2518(3)(c). Traditional investigative

techniques include: (1) standard surveillance; (2) questioning and interrogating

witnesses or suspects, including through the use of grand jury proceedings; (3)

search warrants; (4) infiltration of criminal groups by confidential informants and

undercover agents; (5) pen registers; and (6) trap and trace devices. United States

v. Cline, 349 F.3d 1276, 1280 (10th Cir. 2003).

Although the necessity requirement is intended to ensure that wiretaps are

not used in situations where traditional investigative techniques may achieve law

enforcement purposes, we do not require investigating officers to “exhaust all

other conceivable investigative procedures before resorting to wiretapping.”

United States v. Zapata, 546 F.3d 1179, 1185–86 (10th Cir. 2008) (quotations

omitted). We do require, however, that officers explain the need for wiretaps

with some degree of specificity. See Cline, 349 F.3d at 1280–81. Indeed, “[t]he

[officers’] statements must be factual in nature and they must specifically relate

to the individuals targeted by the wiretap.” Id. at 1281.

“We review for an abuse of discretion a district court’s determination that a

wiretap was necessary.” United States v. Ramirez-Encarnacion, 291 F.3d 1219,

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1222 & n.1 (10th Cir. 2002). “A defendant bears the burden of proving that a

wiretap is invalid once it has been authorized.” Id. If a defendant carries his

burden by demonstrating that a wiretap was not necessary, we will suppress any

evidence seized pursuant to the wiretap. Id.

Mr. Foy contends that the wiretap evidence should have been suppressed

because: (1) the officers’ affidavits in support of their wiretap applications

included generic information regarding the limitations of traditional investigative

techniques; (2) the expressly stated objectives of the wiretaps—to uncover all of

the sources of supply for the conspiracy, the locations of “stash houses,” and the

monies derived from the conspiracy—are so general that they could conceivably

justify wiretaps in any drug conspiracy case; and (3) the affidavits actually

established that the government’s goals were being achieved without wiretaps.

We have fully reviewed the comprehensive affidavits submitted by the

officers in support of their wiretap applications and find them entirely sufficient

to support the district judge’s conclusion that wiretaps were necessary. Indeed,

the affidavits address why each traditional investigative technique had either been

ineffective in this particular case or why the officers believed such techniques

would be ineffective or dangerous. Furthermore, we have held on numerous

occasions that the law enforcement goal of uncovering the size and scope of the

conspiracy may justify the authorization of wiretaps. See Zapata, 546 F.3d at

1187; see also Ramirez-Encarnacion, 291 F.3d at 1223 (affirming district court’s

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necessity determination when, despite the officers’ use of traditional investigative

techniques, “the identity of many of the conspirators and the full extent of the

conspiracy remained unknown”); United States v. Johnson, 645 F.2d 865, 867

(10th Cir. 1981) (affirming district court’s necessity determination and noting that

“[t]he FBI was properly concerned [] with identifying all of the members of the

conspiracy, as well as the precise nature and scope of the illegal activity”).

For these reasons, the district judge did not abuse his discretion in

concluding that the wiretaps sought in this case were necessary.

B. Motion for Judgment of Acquittal

Mr. Foy next argues that the district court erroneously denied his motion

for judgment of acquittal because: (1) there was insufficient evidence that he was

engaged in a conspiracy; and (2) the District of Kansas was an improper venue for

the prosecution of the charges against him.

1. Sufficiency of the Evidence

In Mr. Foy’s motion for a judgment of acquittal, he did not argue that the

evidence of conspiracy was insufficient to sustain his conviction. Accordingly,

we review his sufficiency of the evidence claim for plain error. See United States

v. Goode, 483 F.3d 676, 681 (10th Cir. 2007). Under this standard, Mr. Foy must

establish “(1) error, (2) that is plain, which (3) affects substantial rights, and

which (4) seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Flonnory, 630 F.3d 1280, 1288 (10th Cir. 2011).

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 To obtain a conspiracy conviction, the government must prove: (1) an

agreement by two or more persons to violate the law; (2) knowledge of the

objectives of the conspiracy; (3) knowing and voluntary involvement in the

conspiracy; and (4) interdependence among co-conspirators. United States v.

Hutchinson, 573 F.3d 1011, 1035 (10th Cir. 2009). “[I]nterdependence exists

where each co-conspirator’s activities constituted essential and integral steps

toward the realization of a common, illicit goal.” United States v. Edwards, 69

F.3d 419, 431 (10th Cir. 1995) (quotations omitted). The interdependence

element, however, does not require that the government prove “the coconspirators

know the identities or details of each scheme or have connections with all other

members of the conspiracy.” Id. (quotations and alterations omitted).

Mr. Foy argues that, with the possible exception of Mr. Wesley, the

government failed to demonstrate interdependence between himself and the other

conspirators. With respect to his relationship with Mr. Wesley, Mr. Foy argues

that they merely shared a common supplier, which is insufficient to establish

interdependence. See United States v. Caldwell, 589 F.3d 1323, 1330 (10th Cir.

2009) (“[S]haring a common supplier, without more, does not demonstrate that

two drug dealers are acting together for their shared mutual benefit.”).

Mr. Foy is correct that the government presented little evidence that he had

an interdependent relationship with any conspirator other than Mr. Wesley.

Nevertheless, the government was not required to establish Mr. Foy’s connection

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to all other members of the conspiracy in order to show that his dealings

constituted an essential or integral step toward the common goal of the

conspiracy. Edwards, 69 F.3d at 431.

Furthermore, Mr. Foy greatly understates the nature of his relationship with

Mr. Wesley. Indeed, the government presented a substantial amount of evidence

suggesting that Mr. Foy and Mr. Wesley were partners in the drug trade. That

evidence showed that Mr. Foy and Mr. Wesley regularly pooled their money

together to purchase multiple-kilogram quantities of cocaine, treated their debts to

their drug supplier as common debts, coordinated the distribution of large

amounts of cocaine, and discussed taking a large amount of cocaine from their

supplier without paying for it. From this wealth of evidence, it was reasonable

for the jury to infer that Mr. Foy and Mr. Wesley were dependent upon each other

in their drug trafficking endeavors. See, e.g., United States v. Fox, 902 F.2d

1508, 1515 (10th Cir. 1990) (finding interdependence where defendants “pooled

their money so that [they] could make large purchases at a favorable price”);

United States v. Edwards, 69 F.3d 419, 431 (10th Cir. 1995) (same). The fact that

Mr. Foy may not have known or dealt with all of the people with whom Mr.

Wesley dealt does not necessarily preclude his conspiracy conviction.

For these reasons, there was sufficient evidence of interdependence to

sustain Mr. Foy’s conspiracy conviction. Mr. Foy’s claim on appeal therefore

fails the first prong of plain-error analysis.

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 2. Venue

Mr. Foy also argues that he should have been granted a judgment of

acquittal because the District of Kansas was an improper venue for the

prosecution of both the conspiracy and attempt charges against him. Specifically,

Mr. Foy contends that the government failed to produce any evidence that he

personally committed an illegal act in the District of Kansas.

“[V]enue is a right of constitutional dimension, [which] has been

characterized as an element of every crime.” United States v. Miller, 111 F.3d

747, 749 (10th Cir. 1997). “Venue in federal criminal cases is an element of the

prosecution’s case which must be proved, unlike the other elements, by a

preponderance of the evidence.” Id. at 749–50 (quotations omitted). Although

venue is a question of fact to be decided by the jury, “[w]hether there has been

sufficient evidence to justify a finding on venue is a question of law for the

court.” Id. at 749 (quotations omitted).

Venue is generally proper “in a district where the offense was committed.”

Fed. R. Crim. P. 18; see also U.S. Const. art. III, § 2, cl. 3 (“The Trial of all

Crimes . . . shall be held in the State where the said Crimes shall have been

committed.”); U.S. Const. amend. VI (“In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial, by an impartial jury of the State

and district wherein the crime shall have been committed.”) (emphasis added).

When the crime charged is conspiracy, “venue as to prosecution of all members of

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the conspiracy lies either in the jurisdiction in which the conspiratorial agreement

was formed or in any jurisdiction in which an overt act in furtherance of the

conspiracy was committed by any of the conspirators.” United States v. Rinke,

778 F.2d 581, 584 (10th Cir. 1985).

There is no question that the government presented ample evidence that

various members of the conspiracy committed overt acts in furtherance of the

conspiracy in the District of Kansas. For example, the record demonstrates that

Mr. Foy’s co-defendants Mr. Wesley, Henry Grigsy, and Franklin Goodwin all

resided in Leavenworth, Kansas, and that they regularly coordinated and/or

conducted drug deals there. Accordingly, venue was proper in the District of

Kansas with respect to the conspiracy charge against Mr. Foy.

With respect to the attempt charge, however, venue was improper. To

obtain a conviction for attempt, the government must show that the defendant

“possessed the requisite criminal intent, as well as the commission of an act

which constitutes a substantial step towards commission of the substantive

offense.” United States v. Ramirez, 348 F.3d 1175, 1180 (10th Cir. 2003)

(quotations omitted).

Our review of the record uncovers absolutely no evidence that Mr. Foy

committed any act in the District of Kansas. In fact, the government does not

argue that it ever presented such evidence. Rather, the government relies

exclusively, as it and the district court did below, on Mr. Wesley’s acts to

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establish venue in Kansas for the attempt charge against Mr. Foy.

Indeed, in concluding that venue was proper in the District of Kansas for

the attempt charge against Mr. Foy, the district court described a series of phone

calls that were played for the jury in which Mr. Wesley coordinated a drug deal

with Mr. Foy, Mr. Humphrey, and another co-conspirator from his home in

Kansas. As noted above, however, there was no evidence that Mr. Foy was in

Kansas at the time this drug deal was being coordinated. Nevertheless, the

district court reasoned that “[b]ased on this series of phone calls, it is apparent

that Mr. Wesley and Mr. Foy were arranging a drug deal with Mr. Humphrey, and

Mr. Wesley and Mr. Foy began the offense in Kansas where Mr. Wesley was

located when he was initially on the phone.” (emphasis added).

While it was entirely proper for the district court to impute the acts of Mr.

Wesley to Mr. Foy for the purposes of establishing venue for the conspiracy

charge, the government does not cite a single case suggesting that such

imputation is proper to establish venue for the attempt charge. 3 Moreover, our

3
The government’s exclusive reliance on United States v. Muhammad, 502 F.3d
646 (7th Cir. 2007) is misplaced. In that case, the defendant himself arranged, from his
home in Wisconsin, to travel to Arizona to purchase drugs that he planned to transport
back to Wisconsin for distribution. Id. at 648. Although the drugs were obtained in
Arizona and seized by law enforcement in Texas, the defendant was prosecuted in the
Eastern District of Wisconsin. Id. at 648–51. The Seventh Circuit concluded that venue
was proper in Wisconsin because the “criminal undertaking [] began in the Eastern
District of Wisconsin, drew upon resources from the Eastern District of Wisconsin for
supplemental support, and was, without any doubt, intended, from its very beginning, to
have its sole effect in the Eastern District of Wisconsin.” Id. at 654. Muhammad does
not address the salient venue issue presented by this case: whether the acts of another may

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independent research reveals that at least two of our sister circuits have

specifically rejected this type of “venue by imputation” approach when, as is the

case here, the crime charged does not require concerted activity. See United

States v. Kwong-Wah, 924 F.2d 298, 302 (D.C. Cir. 1991) (“Criminal attempt,

unlike conspiracy or aiding and abetting, is not a ‘group’ crime . . . If the

government wishes to establish venue for an attempt in a district where the

defendant did nothing but where the defendant’s confederates committed criminal

acts, it is required to argue and prove that the defendant specifically aided and

abetted those acts and to request that the jury be instructed on the issue.”); see

also United States v. Griffin, 814 F.2d 806, 812 (1st Cir. 1987) (“The government

has not [] pointed out any authority supporting the use of conspiracy venue

analysis in crimes not requiring concerted activity, and we have uncovered

none.”). Because the government failed to establish that Mr. Foy committed any

act which constitutes a substantial step toward the commission of the substantive

offense in the District of Kansas, it failed to properly establish venue for the

attempt charge. Accordingly, we vacate Mr. Foy’s attempt conviction and the

resultant sentence.

C. Motion for a New Trial

Mr. Foy next argues that he should have been granted a new trial due to one

be imputed to a criminal defendant for the purpose of establishing venue for a criminal
attempt charge. Accordingly, Muhammad is inapposite.

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juror’s introduction of extrinsic evidence to the rest of the jury. Specifically, Mr.

Foy argues that one juror conducted an experiment outside the deliberation room

in which he timed himself retrieving items from the floorboard of his car, that the

juror presented the results of this experiment to the rest of the jury, and that this

information affected the jury’s verdict.

“We review the denial of a motion for new trial based upon juror

misconduct for an abuse of discretion.” United States v. Simpson, 950 F.2d 1519,

1521 (10th Cir. 1991). “Whether a district court abused its discretion in denying

the motion depends on whether there is a reasonable possibility the extraneous

material may have affected the jury’s verdict.” Id.

In this case, once the district court was apprised of the juror’s alleged

misconduct, it questioned both the foreperson and the juror in question. From this

questioning, it became apparent that the juror’s extrinsic experiment related

exclusively to a charge against Mr. Wesley—using and carrying a firearm during

and in relation to a drug trafficking crime. Mr. Foy was not similarly charged

with that firearms offense, and the jury did not return a verdict for that charge

against Mr. Wesley.

Because the allegedly improper extrinsic evidence in this case did not even

relate to a charge against Mr. Foy, we cannot conceive of how that evidence could

have affected the jury’s verdict against him. Indeed, it is not reasonably possible

that the juror’s experiment, which had nothing to do with the conspiracy and

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attempt charges against Mr. Foy, would have affected the jury’s consideration of

the evidence relating to those charges. Accordingly, the district court did not

abuse its discretion in denying Mr. Foy’s motion for a new trial.

D. Sentencing

Mr. Foy’s final arguments on appeal relate to his sentence. He contends

that the district court erred in calculating the drug quantity for which he could be

held accountable and in applying a two-level firearm enhancement.

1. Drug Quantity

The government must prove drug quantity by a preponderance of the

evidence. United States v. Coleman, 7 F.3d 1500, 1504–05 (10th Cir. 1993).

“Factual findings regarding drug quantities are reviewed for clear error and are

reversed only if the district court’s finding was without factual support in the

record or we are left with the definite and firm conviction that a mistake has been

made.” United States v. Dalton, 409 F.3d 1247, 1251 (10th Cir. 2005) (quotations

omitted). “When the actual drugs underlying a drug quantity determination are

not seized, the trial court may rely upon an estimate to establish the defendant’s

guideline offense level so long as the information relied upon has some basis of

support in the facts of the particular case and bears sufficient indicia of

reliability.” Id. (quotations omitted)

In calculating the drug quantity attributable to Mr. Foy, the district court

relied on the trial testimony of Mr. Humphrey and the testimony of Cruz Santa-

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Anna at the sentencing hearing. Specifically, the district court determined from

Mr. Humphrey’s testimony that, in 2007 alone, Mr. Humphrey sold at least five

kilograms of cocaine to Mr. Wesley three times per month, and that the amounts

attributable to Mr. Wesley over this time were also attributable to Mr. Foy.

Extrapolating this fifteen-kilogram-per-month figure over the eleven months

during which the conspiracy was ongoing in 2007, the district court determined

that Mr. Humphrey’s testimony alone was sufficient to hold Mr. Foy accountable

for at least 150 kilograms of cocaine, which translates to a base offense level of

thirty-eight. See U.S.S.G. § 2D1.1(c)(1).

Moreover, the district court also relied on Mr. Santa-Anna’s testimony that

he sold Mr. Foy approximately twenty kilograms of cocaine per month during

2006 and 2007. Noting that this testimony was also sufficient, by itself, to hold

Mr. Foy accountable for at least 150 kilograms of cocaine, the district court

determined that taken in conjunction with Mr. Humphrey’s testimony, “one

cannot fail to find that the quantity considerably exceeded 150 kilograms.”

Mr. Foy first objects to the district court’s drug quantity calculation on the

grounds that he should not be held accountable for all of the drugs sold to Mr.

Wesley during the course of the conspiracy. This argument is plainly without

merit. Indeed, in calculating drug quantity, the district court may consider, “in

the case of a jointly undertaken criminal activity . . ., all reasonably foreseeable

acts and omissions of others in furtherance of the jointly undertaken criminal

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activity.” Id. § 1B1.3(a)(1)(B); United States v. Tagore, 158 F.3d 1124, 1128

(10th Cir. 1998) (concluding that under U.S.S.G. § 1B1.3(a)(1)(B), a defendant’s

sentence may be based on “both the conduct of the defendant and certain conduct

of other participants in the criminal activity”). As discussed in Part II.B above,

there was ample evidence that Mr. Foy could not only reasonably foresee Mr.

Wesley’s drug activity, but that he actively participated in that criminal activity.

Mr. Foy next argues that the district court erred in relying on Mr. Santa-

Anna’s testimony because: (1) Mr. Santa-Anna’s testimony did not concern the

charged conspiracy; and (2) Mr. Santa-Anna’s testimony did not prove a specific

drug quantity by a preponderance of the evidence. These arguments are also

without merit and warrant little discussion. Indeed, it is well-established that “a

sentencing court may look beyond the charges alleged in the indictment and may

consider quantities of drugs not alleged in calculating a defendant’s base offense

level, provided the drugs were part of the same course of conduct or common

scheme or plan as the offense of conviction.” United States v. Hamilton, 587 F.3d

1199, 1221 (10th Cir. 2009) (alterations and quotations omitted). Mr. Santa-

Anna’s testimony supports the district court’s determination that the drugs sold by

him to Mr. Foy were part of the same course of conduct or common scheme or

plan as the conspiracy, and Mr. Foy has presented nothing that leaves us with a

definite and firm conviction that the district court was mistaken in this

determination. Furthermore, Mr. Foy’s contention that Mr. Santa-Anna’s

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testimony was too vague to warrant the district court’s reliance is not supported

by the record.

For these reasons, we conclude that the district court did not clearly err in

calculating the drug quantity attributable to Mr. Foy.

2. Firearm Enhancement

Section 2D1.1(b)(1) of the Guidelines provides for a two-level

enhancement “[i]f a dangerous weapon (including a firearm) was possessed.” The

Application Notes explain that “[t]he enhancement should be applied if the

weapon was present, unless it is clearly improbable that the weapon was

connected with the offense.” U.S.S.G. § 2D1.1, cmt. n.3; see also United States

v. Heckard, 238 F.3d 1222, 1233 (10th Cir. 2001). The enhancement applies

when a co-defendant possessed a firearm, so long as possession was reasonably

foreseeable to the defendant. See United States v. Underwood, 938 F.2d 1086,

1090 (10th Cir. 1991) (holding that under §§ 1B1.3(a)(1)(B) and 2D1.1(b)(1), a

defendant may be held accountable for reasonably foreseeable weapons

possession by a co-defendant). But see United States v. Goddard, 929 F.2d 546,

548 (10th Cir. 1991) (approving of “reasonably foreseeable” approach but

suggesting that foreseeability is not required in conspiracy cases).

The government bears the initial burden of showing possession by a

preponderance of the evidence. Heckard, 238 F.3d at 1233. “The government’s

initial burden is met when it shows that a weapon was located near the general

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location where at least part of a drug transaction occurred.” Id. (quotations

omitted). If the government meets its initial burden, the defendant must

demonstrate that it is clearly improbable that the weapon was connected with the

offense. Id.

In this case, it is undisputed that Mr. Wesley was arrested as he attempted

to purchase five kilograms of cocaine and that officers seized a firearm from Mr.

Wesley’s vehicle at the time of his arrest. Thus, the government met its initial

burden of establishing possession by a preponderance of the evidence. And Mr.

Foy does not argue that it was clearly improbable that the firearm discovered in

Mr. Wesley’s vehicle was connected with the drug trafficking conspiracy, nor has

he contested the district court’s finding that it was “clearly foreseeable to Mr. Foy

that weapons, guns in particular, were involved in this drug [conspiracy].”

Rather, Mr. Foy contends solely that the government did not establish that he

personally possessed a firearm. As noted above, however, Mr. Foy may be held

accountable at sentencing for Mr. Wesley’s firearm possession. See Underwood,

938 F.2d at 1090. Accordingly, the district court did not err in enhancing Mr.

Foy’s sentence pursuant to § 2D1.1(b)(1).

III. CONCLUSION

For the foregoing reasons, we AFFIRM Mr. Foy’s conviction and sentence

with respect to the conspiracy charge. We VACATE, however, Mr. Foy’s attempt

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conviction and the resultant sentence due to the government’s failure to properly

establish venue for that charge.

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