                            UNPUBLISHED

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                            No. 12-4050


UNITED STATES OF AMERICA,

               Plaintiff – Appellee,

          v.

EARL R. FULLER, JR.,

               Defendant – Appellant.



                            No. 12-4095


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

DAVID A. WHEELER, a/k/a Sampson,

               Defendant - Appellant.



                            No. 12-4110


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.
SAMUEL LLOYD, a/k/a Sammy,

                Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of Virginia, at Norfolk.       Mark S. Davis, District
Judge.   (2:11-cr-00036-MSD-FBS-6; 2:11-cr-00036-MSD-FBS-3; 2:11-
cr-00036-MSD-FBS-1)


Submitted:   November 1, 2012            Decided:   December 7, 2012


Before DUNCAN and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Patricia Palmer Nagel, THE LAW OFFICES OF PATRICIA PALMER NAGEL,
PLC, Williamsburg, Virginia, for Appellant Earl R. Fuller, Jr.;
Jason Alan Dunn, JONES, JONES & DUNN, PLC, Chesapeake, Virginia,
for Appellant David A. Wheeler; Lance C. Hamm, LANCE C. HAMM,
Houston, Texas, for Appellant Samuel Lloyd.    Neil H. MacBride,
United States Attorney, Alexandria, Virginia, Laura M. Everhart,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Norfolk, Virginia, for Appellee.



Unpublished opinions are not binding precedent in this circuit.




                                - 2 -
PER CURIAM:

     Following a jury trial in the United States District Court

for the Eastern District of Virginia, the appellants, Samuel

Lloyd, David Wheeler, and Earl Fuller, Jr., were convicted of

conspiracy    to     distribute    and     to    possess      with     the    intent    to

distribute    cocaine     and      marijuana,         and    numerous        substantive

offenses.       On    appeal,     they    challenge          their    convictions       on

numerous fronts.       We affirm.

     First,    Fuller     argues     that       the    district      court     erred    in

failing to grant his motion to sever his case from that of his

codefendants.        We review a district court’s decision to deny a

motion to sever for an abuse of discretion.                          United States v.

Singh, 518 F.3d 236, 255 (4th Cir. 2008).                       While severance of

trials for defendants named in the same indictment is permitted

if joinder “appears to prejudice a defendant,” Fed. R. Crim. P.

14, joint trials of defendants who are indicted together are

preferred.    Zafiro v. United States, 506 U.S. 534, 537 (1993).

In a conspiracy case, joinder is particularly favored.                           United

States v. Montgomery, 262 F.3d 233, 244 n.5 (4th Cir. 2001).

Accordingly, “a district court should grant a severance under

Rule 14 only if there is a serious risk that a joint trial would

compromise a specific trial right of one of the defendants, or

prevent the jury from making a reliable judgment about guilt or

innocence.”        Zafiro,   506    U.S.     at       539.     In     other    words,    a

                                         - 3 -
district      court   abuses      its    discretion       “only    where   the     trial

court’s decision to deny a severance deprives the defendants of

a fair trial and results in a miscarriage of justice.”                             United

States v. Harris, 498 F.3d 278, 291 (4th Cir. 2007) (citation

and internal quotation marks omitted).

       The record here supports the district court’s decision to

deny the motion for severance.                 Having been indicted together

with   his     codefendants,      Fuller      has   not    demonstrated        a   strong

showing       of   prejudice      from    a   joint    trial      as    required      for

severance under Rule 14.                United States v. Mir, 525 F.3d 351,

357    (4th    Cir.   2008).       Fuller’s       concerns    about      the   relative

culpability of himself and about the nature and quantity of the

evidence against each respective defendant simply does not rise

to the level of a miscarriage of justice.

       Second,      the   appellants      contend     that    the      district     court

erred when it failed to grant a mistrial sua sponte once it

became known that a government witness, Clive Black, spoke to

Lloyd’s       attorney,    Paul    Watson,      IV,   prior       to   Black’s      trial

testimony.         Because the appellants did not move for a mistrial

below, we review the district court’s decision not to declare

one sua sponte for plain error.                   United States v. Castner, 50

F.3d 1267, 1272 (4th Cir. 1995).                  Plain error occurs when there

is (1) an error, (2) which is plain and obvious under existing

law, (3) which is so prejudicial as to affect the outcome of the

                                          - 4 -
proceedings,       and    (4)       which    seriously          affects   the     fairness,

integrity,    or    public      reputation          of    the    proceedings.        United

States v. Hanno, 21 F.3d 42, 45 (4th Cir. 1994).

      In this case, the appellants cannot meet the plain error

standard.     The district court conducted a thorough and careful

colloquy     with    counsel         on     two    occasions        concerning      Black’s

alleged statements to Watson.                     After these lengthy colloquies,

the appellants accepted the government’s offer to stipulate that

Black had made the statements described by Watson.                                Once the

attorneys    accepted      the      government’s          stipulation,      the   district

court was under no obligation to order a mistrial sua sponte.

The   stipulation        was    a    reasonable          solution    that   allowed     the

defendants to further impeach Black’s testimony.                            There was no

error, let alone plain error. ∗


      ∗
       Fuller and Lloyd claim they received constitutionally
ineffective   assistance  of   counsel  when   their  respective
attorneys failed to move for a mistrial once it became known
that Black spoke to Watson.     To prove a claim of ineffective
assistance of counsel, a defendant must show (1) “that counsel’s
performance was deficient,” and (2) “that the deficient
performance prejudiced the defense.”   Strickland v. Washington,
466 U.S. 668, 687 (1984). With respect to the first prong, “the
defendant must show that counsel’s representation fell below an
objective standard of reasonableness.”       Id. at 688.      In
addition, “[j]udicial scrutiny of counsel’s performance must be
highly deferential.”   Id. at 689.   We will address a claim of
ineffective assistance on direct appeal only if the attorney’s
ineffectiveness conclusively appears on the record.       United
States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).
Otherwise, such claims are more properly raised in a motion
filed pursuant to 28 U.S.C. § 2255.     Our review convinces us
(Continued)
                                            - 5 -
       The   appellants         next     challenge          the     sufficiency          of    the

evidence     of     their      conspiracy        convictions.                  We    review    the

sufficiency       of     the        evidence     to        support        a    conviction      by

determining whether there is substantial evidence in the record,

when viewed in the light most favorable to the government, to

support the conviction.               United States v. Jaensch, 665 F.3d 83,

93 (4th Cir. 2011)                  Substantial evidence is evidence that a

reasonable        finder       of     fact     could        accept        as    adequate       and

sufficient to support a conclusion of a defendant’s guilt beyond

a reasonable doubt.             United States v. Burgos, 94 F.3d 849, 862

(4th Cir. 1996) (en banc).

       In the conspiracy count, the appellants were charged with

conspiracy    to       distribute       and    to     possess       with       the    intent    to

distribute cocaine and marijuana.                     To obtain a conviction for a

drug    conspiracy,         the      government        must        prove       the     following

elements:     (1)      an   agreement         between        two     or       more    people    to

distribute the drug or possess it with the intent to distribute;

(2) the defendant’s knowledge of the conspiracy; and (3) his

knowing,     voluntary       participation            in    the    conspiracy.            United

States v. Green, 599 F.3d 360, 367 (4th Cir. 2010).                                  A defendant




that ineffective assistance does not conclusively appear on the
face of this record, and, therefore, we decline to address this
claim on direct appeal.



                                             - 6 -
may    be    convicted      of     conspiracy      without     knowing      all     of   its

details and even if he plays only a minor role.                           Id. at 367–68;

Burgos, 94 F.3d at 858.

       In this case, there is sufficient evidence to support the

appellants’ conspiracy convictions.                     The government’s evidence

at trial established that, in 2005 or 2006, Lloyd called Black,

whom he had known since their early lives in Jamaica.                                Lloyd

stopped in Chesapeake, Virginia, where Black lived, on his way

back from Baltimore, Maryland to his home in Atlanta, Georgia.

Lloyd told Black that he had cocaine to sell and suggested that

Black come to Atlanta to purchase some of it.                         Thereafter, Black

and    his   friend,       Mario    Woods,      went    to   Atlanta    several     times,

purchasing multi-kilogram quantities of cocaine from Lloyd and

his associates on each occasion.

       On    July    24,    2006,       Cyntenious      Morris    was     released       from

prison.        Morris      ran     into    Fuller,      whom   he     had   known    since

childhood.          Fuller offered to assist Morris in reestablishing

himself in the drug distribution business.                        Morris began buying

half-ounces of cocaine from Fuller, but then began buying larger

quantities.         Sometime in 2008, Morris thought that the prices

that    he   was     paying      were     too   high.        Fuller     then    agreed    to

introduce Morris to Fuller’s source of supply, Trenton Hawkins,

so    that   Morris     could      negotiate      a    lower     price.        Thereafter,

Morris bought cocaine from Hawkins, always placing his order

                                           - 7 -
with Fuller, who delivered the cocaine to Morris on all but one

occasion.

     Hawkins was obtaining the cocaine from Michael Cromwell.

His biggest customers were Black and Fuller.                The cocaine was

transported from Texas to Virginia using commercial trucks owned

by Hawkins.      This continued until June 7, 2009, when Hawkins was

stopped by police in Mississippi while on his way to Texas.                 The

police    confiscated    approximately     $700,000.00    that    Hawkins   had

intended to use to purchase cocaine.               After the stop, Hawkins

introduced Fuller to another supplier since Hawkins was getting

out of the business.

     Hawkins’ trucking services were also used by Lloyd.                     In

late 2007 or early 2008, Lloyd called Black and told Black that

he and Michael Daugherty were looking for a truck driver to

transport marijuana from Texas to Virginia.                Black asked his

friend Lewis Scott if he knew of anyone who could do this, and

Scott introduced Black to Hawkins.             Black, in turn, introduced

Hawkins     to   Lloyd   and   David    Wheeler,    who   hired   Hawkins    to

transport 1,700 pounds of marijuana from El Paso to Virginia,

for which Hawkins and Black were paid a total of $70,000.00.

     In July 2008, Hawkins and a driver took Hawkins’ tractor-

trailer to El Paso, where they rendezvoused with Lloyd, Wheeler,

and some Mexicans.       In El Paso, they picked up a trailer packed

with the marijuana hidden under a false floor and covered by a

                                       - 8 -
load of watermelons.         The truck was driven to Norfolk, Virginia

followed by Lloyd, Wheeler, and the Mexicans.                        The watermelons

were unloaded in Norfolk, and the truck was taken to Hawkins’

trucking     yard    in   Portsmouth,        Virginia.         The    marijuana    was

removed by Hawkins, Black, Lloyd, Wheeler, Daugherty, Scott, and

Robert Napier.        The marijuana was stored at Scott’s house, in

several    storage    units,      and   at   a   house   on    Barkleaf    Drive   in

Virginia Beach, Virginia.           Fuller later told Johnnie Cowan about

this 1,700 pound shipment of marijuana.

     The house on Barkleaf Drive was used to store drugs and

money, as a distribution point, and as a place for Lloyd and

Wheeler to stay when they were in town from Atlanta and Texas.

Andre Todd was allowed by Black to stay at the house on Barkleaf

Drive after Todd was released from jail on September 4, 2008.

Todd observed thousands of pounds of marijuana and up to ten

kilograms of cocaine being stored there.

     When a shipment of drugs arrived in Virginia, Wheeler or

Lloyd would also arrive.            They would collect the proceeds from

the sale of the drugs as the money came in.

     On    July     31,   2008,   the   Virginia       Beach    Police    Department

executed a search warrant at one of the storage units rented by

Black to store some of the marijuana and recovered 212 pounds of

marijuana.        Wheeler,     Daugherty,        and   Black    had     brought    the

marijuana to this Virginia Beach unit.                   When Black learned of

                                        - 9 -
the police activity, he enlisted the aid of Simuel Hinton and

Ronald     Nunn,    and    they     removed   400    pounds    of    marijuana       from

another storage unit.

      In    addition       to   using    tractor-trailers,          members     of    the

conspiracy used cars and trucks to transport cocaine, marijuana,

and   cash.        These    vehicles     included     three    Ford     F-150   pickup

trucks, one gray/black and the others red.                    If the loads arrived

during the day, they would use the attached garage at Black’s

house in Chesapeake, Virginia to unload the contraband.                              They

usually rendezvoused at a strip shopping center near Black’s

home before going to the house.                     The trucks were driven by

Wheeler,      Daugherty,        and     Napier.       The     trucks     had    secret

compartments that were fitted into the taillights and opened

hydraulically.

      In May 2009, a series of telephone conversations on Black’s

phone were intercepted pursuant to a court-ordered wiretap.                            On

May 16, 2009, Black and Lloyd discussed marijuana deals.                             Lloyd

was in Maryland at the time.              On May 21, 2009, Black told Lloyd

that Napier wanted to transport marijuana from Arizona.                              They

also discussed setting up a 1,000 pound marijuana transaction

between Todd and Lloyd’s Baltimore associates.

      On May 23, 2009, a meeting took place in Virginia Beach

involving     Lloyd,       Black,     Todd,   and   the     Baltimore    associates.



                                         - 10 -
They discussed Todd purchasing the marijuana.                      No agreement was

reached.

    On June 1, 2009, Lloyd again was in Baltimore.                                He and

Black again spoke of Mexico and Arizona.                     On June 4, 2009, Lloyd

flew into the Phoenix, Arizona airport.                       He was approached by

Detective Donald Gabrick of the Phoenix Police Department after

acting     suspiciously      while     claiming             his   luggage.         Lloyd

eventually consented to a search of his luggage, and Detective

Gabrick found $100,530.00 concealed in the lining of Lloyd’s

suitcase,    for     which    Lloyd     had       no        plausible     explanation.

Detective Gabrick also recovered two used boarding passes and

other documents indicating that Lloyd had flown from Baltimore

to Phoenix on May 19 and May 28.             Lloyd later told Black that he

had lost $100,000.00 belonging to his Baltimore associates while

he was in Arizona.

     In    July   2009,    Lloyd    called    a   friend,         Bruce   Heyward,    in

Atlanta who owned a trucking company.                       This was shortly after

Hawkins was stopped in Mississippi while on his way to Texas

with nearly $700,000.00.           Unbeknownst to Lloyd, Heyward had been

arrested and was cooperating with law enforcement.                        Lloyd wanted

Heyward     to    transport    marijuana          from        Texas     to      Virginia,

Baltimore, and Washington, D.C.               Heyward recorded a series of

telephone    calls    at     the    direction          of     agents,     and    Heyward

eventually set Lloyd up with an undercover agent, who continued

                                      - 11 -
negotiations       with    Lloyd    regarding      price      and   quantity.        This

continued       through    September       2009.      Lloyd    mentioned     marijuana

loads of up to 4,000 pounds originating in Arizona and Houston,

Texas.       Nothing was ever agreed upon.             The last contact between

the undercover agent and Lloyd occurred on June 8, 2010, when

Lloyd tried again to arrange a meeting in Arizona to further

discuss transporting marijuana.

       By this time, Black had been approached by agents and was

cooperating in the investigation.                  In July 2009, Lloyd and his

Baltimore associates came to Virginia looking for an individual

who owed them money for a $200,000.00 drug debt.                        Black alerted

the agents, and a violent confrontation was averted.

       The evidence summarized above is sufficient to support the

appellants’ conspiracy convictions.                  Reduced to its essence, the

appellants’ challenge to these convictions rests on an attack on

the    credibility    of     the    government’s       witnesses,      but   the     jury

resolved the credibility issues in favor of the government.                           As

an    appeals    court,     we    cannot    review    the     credibility      of   these

witnesses.       United States v. Foster, 507 F.3d 233, 244–45 (4th

Cir. 2007).

       The     appellants    raise    other    arguments       which    they    contend

should    be    resolved     in    their    favor.      We    have    reviewed      these

arguments and find them to be without merit.                         Accordingly, the

judgments of the district court are affirmed.

                                       - 12 -
     We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                           AFFIRMED




                             - 13 -
