                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-4946


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

PAUL STARNER,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:14-cr-00008-LMB-1)


Submitted:   July 21, 2015                 Decided:   August 18, 2015


Before GREGORY, DUNCAN, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Peter L. Goldman, O’REILLY & MARK, P.C., Alexandria, Virginia,
for Appellant.     Dana J. Boente, United States Attorney,
Christopher Catizone, Assistant United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     On    September    24,     2014,   a    federal          jury   convicted    Paul

Starner of conspiracy to distribute cocaine and cocaine base in

violation of 21 U.S.C. §§ 841 (a)(1) and 846.                          Before trial,

Starner filed two motions to suppress: one concerning wiretap

evidence and one concerning statements Starner made in a post-

arrest    interview.     The     district        court    denied       both    motions.

Starner    now    appeals     those     denials.         He     also    appeals    his

conviction, contending there was insufficient evidence for the

jury to find him guilty of conspiracy to distribute cocaine.

For the reasons that follow, we affirm.



                                        I.

                                        A.

     In February 2013, as part of its investigation of a drug-

trafficking      organization    operating        in   Prince        William   County,

Virginia, the Federal Bureau of Investigation (“FBI”) obtained

authorization from the district court to wiretap the telephone

communications of a suspected cocaine distributer.                       The wiretap

revealed that the distributer’s name was Johnnie Hill and that

Hill frequently communicated with Starner.                       The FBI obtained

four subsequent authorizations to tap Hill’s phone but never

tapped Starner’s phone.



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      The information the FBI gathered over the wiretaps between

February and June 2013, led the FBI to believe Starner was a

low-level player in the conspiracy, purchasing small quantities

of powder and crack cocaine to redistribute to other buyers.

Starner was arrested on October 17, 2013.

      Following his arrest, Starner was taken to the FBI’s field

office in Manassas, Virginia, where two Prince William County

detectives     interviewed   him.        The    detectives     testified    that

Starner was offered use of the restroom, and a bottle of water

and a granola bar prior to his interview.                 They also testified

that Starner was handcuffed with his hands in front of him,

rather   than    behind   his    back,     so    that     he   would   be   more

comfortable.

      Before the interview, the detectives sought to obtain a

written waiver of Starner’s Miranda rights.                Starner was unable

to read the waiver form because he did not have his glasses, so

the   detectives   read   Starner’s      Miranda    rights     aloud   to   him.

After    the    detectives      finished       reading,    Starner     verbally

acknowledged he understood his Miranda rights, and signed the

written waiver.

      During the interview, Starner informed the detectives that

he had sustained a brain injury during a car accident in the

1970s and suffered from memory loss as a result.                Starner claims

that because of his injury he cannot remember anything about the

                                           3
interview, including whether he was offered food and beverage,

or whether he was informed of and waived his Miranda rights.

Starner    states    that     he    does      remember,        however,         that    the

detectives      informed    him    he   could       receive    up    to    30   years    in

prison if he did not answer their questions.

                                         B.

     In support of his motion to suppress the wiretap evidence,

Starner argued that the affidavits the government submitted in

support of its application for wiretap authorization did not

satisfy 18 U.S.C. § 2518(3), which requires the government to

demonstrate      probable    cause      for     a    wiretap    and       exhaust      less

intrusive measures before applying for a wiretap.                          Starner also

claimed that the government failed to minimize its interception

of phone calls unrelated to the suspected criminal activity.                             In

support of his motion to suppress his post-arrest statements,

Starner argued that his Miranda rights waiver was involuntary.

     The district court denied both motions after a hearing on

September 22, 2014.          The court found that the government had

established probable cause to authorize the wiretap of Hill’s

phone     and    noted      that    Starner          could     not        identify      any

investigative procedures the FBI should have, but failed to, try

prior to applying for a wiretap, nor any phone calls or portions

of phone calls the FBI listened to impermissibly.                               The court

also noted that it did not find Starner’s claims regarding his

                                              4
mental state at the time of his interview to be credible and

could   find    no   evidence       demonstrating        police    intimidation       or

failure to properly administer his Miranda rights.                            Thus, the

district court admitted at trial evidence from the wiretaps and

Starner’s post-arrest interview.                 On September 24, 2014 after a

one-day    trial,     the    jury    convicted        Starner    of    conspiracy     to

distribute cocaine and cocaine base.

                                        II.

      We turn first to Starner’s contention that the district

court erred in denying his motions to suppress.                              “We review

factual    findings     regarding     [a]    motion       to    suppress     for   clear

error     and   legal   conclusions         de       novo.”      United      States   v.

Williams, 740 F.3d 308, 311 (4th Cir. 2014).                          We construe the

evidence in the light most favorable to the prevailing party in

the district court.          United States v. Foster, 634 F.3d. 243, 246

(4th Cir. 2011).            Because the district court denied Starner’s

motions, we construe the evidence in the light most favorable to

the   government.       In     examining     the       sufficiency      of   a   wiretap

affidavit, “we review for abuse of discretion determinations of

necessity under § 2518, United States v. Wilson, 484 F.3d 267,

280 (4th Cir. 2007), and give great deference to the issuing

judge’s determination of probable cause, United States v. Depew,

932 F.2d 324, 327 (4th Cir. 1991).



                                                 5
                                               A.

      Starner    argues             that     the    district         court       should    have

suppressed    the     evidence         the    government        obtained         from   tapping

Hill’s telephone.          Starner contends here, as he did before the

district     court,      that        the     government        failed       to    demonstrate

probable cause for the wiretap, failed to exhaust less intrusive

investigative       measures         before    applying        for    the    wiretaps,      and

failed to minimize its interception of phone calls unrelated to

the suspected criminal activity.                    Starner also contends that the

district court erred in failing to hold an evidentiary hearing

concerning his motion to suppress.                          We address each contention

in turn.

                                               1.

      18 U.S.C. § 2518 sets out three probable-cause requirements

the   government      must       meet      before       a    judge    may    authorize     the

interception        of     a        individual’s            telephone       communications:

“probable cause for belief that [the] individual is committing,

has   committed,      or       is    about     to   commit       a   particular         offense

enumerated in [18 U.S.C. § 2516]”; “probable cause for belief

that particular communications concerning that offense will be

obtained through such interception”; and probable cause that the

telephone to be tapped is “leased to, listed in the name of, or

commonly used by [the individual].”



                                                    6
       The government must establish such probable cause only with

respect to the individual whose phone is to be tapped; not for

every individual with whom the wiretap subject might exchange

phone calls during the authorized period.                    If “recordings of [a]

defendant’s conversations [a]re . . . made incident to a lawful

wiretap, . . . it [is] not error to allow the introduction of

the taped telephone calls simply because defendant was not named

in the application or order as one whose conversations would

possibly be intercepted.”             United States v. Smith, 565 F.2d 292,

294 (4th Cir. 1977).                Thus, the government’s interception of

telephone conversations between Hill and Starner was proper so

long   as    the     government     had     sufficient    probable      cause   to   tap

Hill’s telephone.

       The    district      court    found     that    the   government’s       wiretap

affidavits      contained      “tons      of   evidence”        to    support   tapping

Hill’s      phone,    and   that     “any    fair     reading    of    the   affidavits

establishes adequate probable cause to justify” tapping Hill’s

telephone.         J.A. 48, 50.       Although Starner correctly points out

that Hill was not mentioned by name in the government’s initial

wiretap affidavit, the wiretap statute does not require that the

government identify a target individual’s name.                       Rather, it only

requires probable cause that the target individual is committing

an offense, that the government will obtain information about

the offense by listening to the target individual’s telephone

                                                7
calls, and that the telephone identified by the government does

indeed belong to the target individual.                       Starner has offered no

argument that the government failed to meet those requirements.

Thus,     we   defer    to     the    district            court’s     finding     that     the

requisite probable cause existed to justify the wiretap.

                                            2.

       Starner next argues that the government failed to exhaust

normal investigative procedures before applying for the wiretap.

The wiretap statute requires the government to show that “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)(c).         To    meet     this

exhaustion requirement, the government must provide more than “a

mere    boilerplate     recitation         of       the   difficulties       of    gathering

usable     evidence,”     but     “the      adequacy          of     [the    government’s]

showing is to be tested in a practical and commonsense fashion

that    does   not    hamper    unduly      the         investigative       powers    of   law

enforcement agents.”            United States v. Oriakhi, 57 F.3d 1290,

1298 (4th Cir. 1995) (quotation and alteration omitted).

       Here,     the      government’s               affidavits           discussed        over

20 investigative        tactics      the    government             had    tried    prior     to

applying for the wiretap. Appellee’s Br. at 17.                              Starner does

not point to any alternative tactics the government could have

utilized. Thus, we defer to the district court’s finding that

                                                    8
the    government          adequately        exhausted          normal            investigative

procedures before applying for the wiretap.

                                             3.

       Starner      next      argues        that        the     government               did    not

sufficiently minimize its collection of wiretap evidence.                                       The

wiretap statute provides that wiretaps “shall be conducted in

such a way as to minimize the interception of communications not

otherwise subject to interception . . . , and must terminate

upon     attainment    of     the     authorized            objective.”              28    U.S.C.

§ 2518(5).       “The wiretapping statute does not require that all

innocent      communications           be     left          untouched,”             and        “[i]n

determining whether the minimization requirements of § 2518(5)

have been met, courts apply a standard of reasonableness on a

case-by-case       basis.”       Oriakhi,          57    F.3d      at    1300.       Here,       the

government    followed        proper    procedures            to    ensure          it    did   not

record     innocent        communications             any     more       than        necessary,

Appellee’s    Br.     at    18-19,     and    Starner         fails          to    identify      any

particular       telephone       conversation               that        he        believes       the

government intercepted improperly.                      Thus, he fails to establish

a   failure   to    comply     with     the       wiretap     statute’s            minimization

requirement.

                                             4.

       Finally, Starner claims that the district court erred by

failing to conduct an evidentiary hearing concerning Starner’s

                                                  9
motion to suppress wiretap evidence.                          We have already held that

the   government’s          wiretap         affidavits           established         sufficient

probable      cause        to     justify          intercepting           Hill’s      telephone

conversations        with        Starner.               To     the    extent       Starner     is

contending      that       the       district          court      should     have     held    an

evidentiary hearing concerning the accuracy of the government’s

statements in its wiretap affidavits, see Franks v. Delaware,

438   U.S.    154    (1978),         that    argument           fails.      In   Franks,      the

Supreme      Court    held       that       the        Fourth    Amendment       requires     an

evidentiary     hearing         be   held     at       a    defendant’s     request     if    the

defendant      has     offered          proof          that      an   affidavit        contains

indications of deliberate falsehood or reckless disregard for

the truth.      438 U.S. at 155 - 56, 171.                       Starner offered no such

proof in the district court and has offered none here.

                                                  B.

      We turn next to Starner’s argument that evidence from his

post-arrest        interview         should       be        suppressed     because     he     was

mentally unable to voluntarily waive his Miranda rights.                                      To

determine whether a confession was given involuntarily, “[t]he

proper     inquiry     is       whether       the           defendant’s     will     has     been

overborne     or     his    capacity         for        self-determination           critically

impaired”     by     “threats,        violence,             implied      promises,    improper

influence, or other coercive police activity.”                             United States v.

Holmes, 670 F.3d 586, 591 (4th Cir. 2012) (quotation omitted).

                                                       10
In    thus    considering,            we     review          the     totality           of   the

circumstances,         including      not    just      whether      there      was      coercive

police activity, but also “the characteristics of the defendant,

the   setting      of     the        interview,        and     the       details        of   the

interrogation.”         Id.

      Here, Starner claims that he was mentally incapacitated at

the   time   of    the    interview         due   to    a    brain       injury    he     claims

impairs his short- and long-term memory, and that the police

coerced him by informing him that if he did not answer their

questions,    he       could    be    subject     to    30    years       in   prison.        In

support, he cites only his own testimony, which the district

court did not find credible.                 See J.A. 123.           Even if the police

did inform Starner that he potentially faced 30 years in prison,

“statements       by     law     enforcement           officers       that        are     merely

uncomfortable or create a predicament for a defendant are not

ipso factor coercive.”               Holmes, 670 F.3d at 592–93.                        Further,

the   totality     of     the    circumstances          does       not    indicate        police

coercion.     Starner was offered access to the restroom, food and

beverage, and was placed in handcuffs with his arms in front of

him, rather than behind his back.                       The police read Starner’s

Miranda rights aloud to him, and saw no indication that Starner

did not comprehend their communications.                       Based on this record,

we cannot overturn the district court’s finding that Starner

voluntarily waived his Miranda rights.

                                                  11
                                            III.

      We   turn     finally      to     Starner’s     claim     that       there    was

insufficient evidence in the record to support his conviction.

We review the sufficiency of the evidence in the light most

favorable to the government as well, and the jury verdict must

be sustained if there is substantial evidence to support the

conviction.       United States v. Jaensch, 665 F.3d 83, 93 (4th Cir.

2011).     In determining the sufficiency of the evidence, “we do

not weigh the evidence or assess the credibility of witnesses,

but assume that the jury resolved any discrepancies in favor of

the government.”        United States v. Kelly, 510 F.3d 433, 440 (4th

Cir. 2007).       “Reversal for insufficient evidence is reserved for

the rare case where the prosecution's failure is clear.”                         United

States v. Ashley, 606 F.3d 135, 138 (4th Cir. 2010).

      “Conspiracy is an inchoate offense, the essence of which is

an   agreement     to   commit    an    unlawful    act.”      United      States    v.

Edmonds,    679     F.3d   169,       173    (4th   Cir.    2012).         “To     prove

conspiracy, the government need not prove an explicit agreement.

It may rely upon indirect evidence from which the conspiracy

agreement may be inferred.”             Id. at 174.        Such indirect evidence

may include the amount of cocaine involved in the distribution,

the regularity of distribution transactions, and distributions

involving a credit agreement known as “fronting.”                    Id.



                                               12
     The    government           presented        all     three   examples     of    indirect

evidence at Starner’s trial.                   First, Starner admitted to buying

over $200 of cocaine at one time, which one of the lead FBI

agents on the case testified was an amount inconsistent with

purely     personal        use.         Second,      transcripts       of     tapped    calls

indicate       the    regularity         of    Starner      and    Hill’s     transactions.

During one call, after Starner told Hill he didn’t have his

“stuff” or his money, Hill told Starner “we been through this

10 times    man.”          Later       in   the    conversation,       Hill    said,    “this

ain’t the first or second or third time you did this to me.”

Finally, in a separate conversation, after establishing Starner

had taken some of Hill’s product, Starner said, “I apologize

Bush I got a hundred right now but I’ll have the rest of it

tomorrow       or    the   next        day,”   indicating         Starner    paid    Hill    on

credit.     In reviewing this evidence in the light most favorable

to   the    government,           we    find      sufficient       evidence     to   sustain

Starner’s conviction.

                                               IV.

     For the foregoing reasons, we affirm the judgment of the

district    court.          We    dispense        with     oral    argument    because      the

facts    and    legal      contentions         are      adequately    presented        in   the

materials       before     this        court   and      argument     would    not    aid    the

decisional process.

                                                                                     AFFIRMED

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