                                              NOT PRECEDENTIAL
                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT



                               No. 16-2701



                     UNITED STATES OF AMERICA

                                    v.

                         REGINALD BRADDY,
                                   Appellant



                               No. 16-2806



                      UNITED STATES OF AMERICA

                                     v.

                           FONTAINE HORTON,
                                      Appellant
                      __________________________

                 On Appeal from the United States District Court
                     for the Middle District of Pennsylvania
           (M.D. Pa. Nos.: 3-14-cr-00104-001 and 3-14-cr-00104-002)
District Judges: Honorable Malachy E. Mannion and Honorable Edwin M. Kosik
                         __________________________

                Submitted under Third Circuit L.A.R. 34.1(a)
                          on November 17, 2017
         Before: AMBRO, KRAUSE, and RENDELL, Circuit Judges
                            (Opinion filed: December 6, 2017)

                                       ___________

                                      O P I N I O N*
                                      ___________

RENDELL, Circuit Judge:

       Reginald Braddy and his co-defendant Fontaine Horton were both found guilty of

conspiracy to possess and distribute narcotics in violation of 21 U.S.C. §§ 846, and

Horton was also found to be in violation of 21 U.S.C. § 841. Braddy and Horton

appealed. The Defendants raise several issues: (1) both challenge the District Court’s

denial of their motion to suppress wiretap evidence; (2) Braddy argues that the District

Court erred in denying his motion for a mistrial; (3) Braddy also argues that the District

Court erred in denying his motion for judgment of acquittal; and (4) both Defendants

challenge the sentences imposed by the District Court. We will affirm all of the District

Court’s orders.1

                      I. FACTS AND PROCEDURAL HISTORY

       Braddy and Horton were indicted for conspiracy to traffic methamphetamine,

cocaine, and heroin. A1120-23. Each pleaded not guilty and proceeded to trial.

       Prior to trial, the Defendants filed a joint motion to suppress evidence obtained

through court-approved wiretaps. They argued that the Government’s wiretap

applications failed to show that traditional investigative methods “ha[d] been tried and

*
  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
  We possess jurisdiction over this appeal from a final district court order pursuant to 28
U.S.C. § 1291.
                                             2
have failed or reasonably appear to be unlikely to succeed,” as required by 18 U.S.C. §

2518(3)(c). A1124-30. They also argued that they were entitled to a Franks hearing to

determine whether the wiretap warrants were based on false statements by law

enforcement. A1132-46. The Distirct Court rejected both arguments and denied the

motion to suppress. A18.

       At trial, three confidential informants testified that they had purchased various

types of drugs from Braddy and Horton and that the two Defendants worked together to

ship, distribute, collect payment for, and “cut” the drugs for resale.2 The Government also

introduced evidence of Braddy and Horton’s frequent phone and text conversations

regarding their trafficking activities. A183.

       At one point during the trial, the following exchange took place during defense

counsel’s cross-examination of Michael Sciarillo, a law enforcement officer involved in

the investigation:

       Q: And what is the code word for crystal meth?

       A: Ice, ugly, rocket fuel, racing fuel, glass, slippers.

2
        Informant One testified that he had met Horton through Braddy’s uncle. A221. He
also testified that sometimes when he purchased drugs from Horton, Horton told him to
send money to Braddy’s California address instead of paying Horton directly. A272.
        Informant Two testified that Braddy sent Horton packages of drugs. A344-46. He
testified that Horton facilitated a phone conversation where Braddy told the informant
how to “cut” large quantities of drugs for resale. A337. He also testified that Horton and
Braddy “cut” drugs together, and that Horton allowed the informant to use his car to sell
drugs. A338-40.
        Informant Three testified that Braddy introduced him to Horton after the informant
told Braddy he wanted to purchase drugs from him. A447. Braddy sent Horton to the
informant’s home to carry out the sale. A447. He testified that sometimes Braddy told
him to pay Horton directly, and sometimes he told him to send payment to Braddy in
California. A448.
                                                3
        Q: Would you agree with me of any of the documents you went through
        that other than the one document . . . there’s no mention of any of those
        code words?

        A: There’s mention in text message and various mentions in the audio,
        which we will play.

        Q: Would you identify the other one—other than that one?

        A: What do you want me to identify?

        Q: Other than that one, the one thing you went through --

        A: Yes

        Q: -- I want you [to] identify there are crystal meth code words other than
        the one space where it talks about ugly.

        A: Actually I believe I am incorrect. That exhibit will be presented by
        another witness, not me. So for that exhibit, yes, you’re correct.

A423-24. Following this exchange, defense counsel moved to strike Sciarillo’s

testimony and declare a mistrial, citing “testimony of what another witness is

going to say.” A424. The District Court denied the motion for mistrial. A424.

        Following the Government’s presentation of evidence, the Defendants moved for a

judgment of acquittal, arguing that the Government had failed to prove a conspiracy.

A544–55. The District Court denied the motion, and the jury returned a guilty verdict.

A546.

        Horton and Braddy were sentenced to 188-225 and 235-240 months in prison,

respectively, based on the District Court’s conclusion that the offense involved at least

18,265 kg. of drugs. A22. Horton objected, arguing that he should only be responsible for

the quantity of drugs he personally possessed or sold. A23. The District Court rejected

this argument. A36.


                                              4
                                     II. DISCUSSION

                                   A. Wiretap Evidence

       The Defendants argue that the District Court erred in admitting wiretap evidence

because the Government’s wiretap application did not meet the requirements of 18

U.S.C. § 2518(3)(c). They also argue that the District Court erred in refusing to grant

them a Franks hearing to determine whether the wiretaps were obtained through false

statements. We will not disturb these rulings.

                        1. Motion to Suppress Wiretap Evidence3

       18 U.S.C. § 2518(3)(c) requires a wiretap applicant 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.” The Defendants argue that the

wiretap applications did not meet this requirement because, using traditional investigative

techniques, the Government had already obtained sufficient evidence to charge them with

the crime. Specifically, it already had identified several members of the conspiracy,

determined the source of some of the drugs, and obtained financial information about

Braddy.

       However, the Defendants misconstrue § 2518(3)(c)’s requirement. As the District

Court correctly noted, even where traditional investigative techniques may be sufficient

to implicate some members of a conspiracy, wiretaps are permissible if necessary to

uncover the full scope of the conspiracy. See United States v. Bailey, 840 F.3d 99, 114–

3
 This Court reviews the denial of a motion to suppress “for clear error as to the
underlying facts, but exercise[s] plenary review as to its legality.” United States v.
Jackson, 849 F.3d 540, 544 (3d Cir. 2017).
                                              5
15 (3d Cir. 2016) (“As we have previously explained, even where ‘normal investigative

techniques might have been sufficient to implicate’ the conspiracy leader in drug

trafficking, ‘such approaches’ are sometimes insufficient to determine ‘the scope of the

conspiracy or the nature of [the conspiracy leader's] on-going criminal activity.’ Instead,

‘[i]n the proper circumstances, the instrumentalities of Title III may be employed to

discover the full extent of crimes and conspiracies.’” (quoting United States v. Vento, 533

F.2d, 838, 850 (3d Cir. 1976)). When determining whether a wiretap is necessary to

uncover the full scope of a conspiracy, a court “may properly take into account

affirmations which are founded in part upon the experience of specifically trained

agents.” United States v. Williams, 124 F.3d 411, 418 (3d Cir. 1997).

       The District Court did not err in concluding that wiretaps were necessary to learn

the full scope of the drug trafficking conspiracy. The law enforcement affidavits

submitted in support of the wiretap applications described in detail the traditional

investigative techniques used. They explained that these techniques had failed to reveal

the full scope of the conspiracy, including all the participants, suppliers, customers, and

storage locations involved. They also described the various traditional techniques not

employed—including undercover officers, grand jury subpoenas, search warrants,

interviews, and mail covers—and why those techniques would have been ineffective or

even dangerous. The District Court thus properly concluded that wiretaps were necessary

to uncover the full scope of the conspiracy and that the applications complied with §

2518(3)(c).



                                              6
                           2. Failure to Grant a Franks Hearing4

       In certain circumstances, a criminal defendant has the right to an evidentiary

hearing to determine whether a search warrant was based on a false statement. Franks v.

Delaware, 438 U.S. 154, 155–56 (1978). According to the Defendants, two pairs of

contradictory law enforcement statements entitled them to a Franks hearing.5 First,

according to a law enforcement report, in October 2013 Informant Two told law

enforcement officers that he obtained drugs from Horton and that he knew Horton

obtained drugs from Braddy. Braddy Br. at 21. But, according to the January 2014

wiretap application, “while [Informant Two] previously identified Horton as being his

source for narcotics, [Informant Two] is a relatively low ‘street-level’ drug dealer and is

not familiar with other members of Horton’s organization or with Horton’s source(s) of

supply.” Id. Second, according to the same affidavit, “investigators do not know the

location where Fontaine Horton received his mail” and “have not yet identified any bank

accounts and/or assets potentially owned or utilized by Horton’s drug trafficking

organization.” Id. However, other documents show that they were aware of at least one

bank account and several addresses associated with Braddy by late 2013.

       In order to obtain a Franks hearing, a defendant must make “a substantial

preliminary showing” that (1) the warrant was based on a statement that was knowingly


4
  The standard of review applied to a district court’s denial of a Franks hearing is an open
question in the Third Circuit. See United States v. Pavulak, 700 F.3d 651, 665 (3d Cir.
2012) (“We have not yet identified the standard of review for a district court’s denial of a
request for a Franks hearing”). We need not resolve this question here because the
District Court’s decision withstands even de novo review.
5
  For purposes of this decision only, we assume Franks applies to wiretap applications.
                                             7
and intentionally false or made with reckless regard for the truth, and (2) the allegedly

false statement was necessary to the finding of probable cause. Franks, 438 U.S. at 155-

56. “[T]he defendant cannot rest on mere conclusory allegations.” United States v. Yusuf,

461 F.3d 374, 383 n.8 (3d Cir. 2006).

       We agree with the District Court’s conclusion that the Defendants failed to make

the required preliminary showing. Although some of the statements in the affidavits were

inconsistent with statements found in other documents, the Defendants’ bare allegations

do not support a finding that any false statements were made knowingly and intentionally

or with reckless disregard for the truth. Nor have they shown that any of the allegedly

false statements were necessary to the court’s probable cause determination. The

Defendants were therefore not entitled to a Franks hearing.

                             B. Braddy’s Motion for Mistrial

       The District Court did not err in denying Braddy’s motion for mistrial following

Sciarillo’s testimony.6 Braddy argues that Sciarillo’s incorrect statement that he would

present an exhibit providing the code words for methamphetamine—which he himself

then corrected—was purposefully made in order to negate cross-examination and bolster

a future witness. Braddy relies exclusively and incorrectly on United States v. Boyce, 849

F.2d 833 (3d Cir. 1988). In Boyce, following cross-examination of a Government witness

regarding her failure to produce several pieces of physical evidence, the prosecutor

turned to the jury and declared that he would “be happy” to produce the evidence himself.

6
 A district court’s denial of a motion for a mistrial in such a situation is subject to abuse
of discretion and harmless error analysis. See United States v. Vitillo, 490 F.3d 314, 325
(3d Cir. 2007).
                                              8
Id. at 837-38. The Boyce court rejected this “bald attempt to undercut the defense’s cross-

examination and vouch for the credibility of his own witness.” Id. But here, the

Government did not attempt to correct Sciarillo’s testimony or bolster his credibility by

directly addressing the jury. In fact, the Government did not speak at all following this

exhange. Boyce is thus inapposite, and the District Court properly denied Braddy’s

motion for a mistrial.

                     C. Braddy’s Motion for Judgment of Acquittal

       The District Court properly denied Braddy’s motion for a judgment of acquittal. A

reviewing court must uphold a conviction “if any rational trier of fact could have found

the essential elements of the offense beyond a reasonable doubt.” United States v. Gibbs,

190 F.3d 188, 197 (3d Cir. 1999). To prove a drug-trafficking conspiracy under

21 U.S.C. § 846, “the government must establish: (1) a shared unity of purpose between

the alleged conspirators, (2) an intent to achieve a common goal, and (3) an agreement to

work together to that goal.” United States v. Bailey, 840 F.3d 99, 108 (3d Cir. 2016). A

simple buyer-seller relationship is not sufficient. Id.

       Braddy argues that he merely had a buyer-seller relationship with his alleged co-

conspirators. Braddy Br. at 16. However, there was sufficient evidence to allow a

reasonable jury to conclude that Braddy at least one other person—Horton—“worked

together” with a “shared unity of purpose” to achieve a “common goal” of distributing

drugs. Trial testimony established that for at least one year, Braddy and Horton worked

together to ship, distribute, and collect payment for various types of drugs. A177, A183,

A394, A396, A399-401. Together they “cut” large quantities of drugs for resale. A338-

                                               9
39. They communicated regularly about their criminal activities. A183. Horton himself

testified that he obtained $38,500 from one of the confidential informants and sent

Braddy the money via mail. A615–17. Given this and the other evidence introduced at

trial, the District Court properly denied Braddy’s motion for a judgment of acquittal.

                         D. Defendants’ Sentencing Challenges

       Finally, Horton and Braddy challenge the sentences imposed by the District Court.

Horton argues that the District Court should have calculated his sentence based the

amount of drugs he personally trafficked, not the amount of drugs involved in the

conspiracy as a whole. Horton Br. 20-22. He also suggests that the District Court

erroneously relied on the informants’ trial testimony to determine the quantity of drugs

attributable to him. Horton Br. 22. Braddy argues that his sentence is substantively

unreasonable because it is greater than the sentences imposed on other members of the

conspiracy. Braddy Br. 25-26. We affirm both sentences.

                                  1. Horton’s Sentence7

       The District Court did not err in holding Horton responsible for the entire quantity

of drugs trafficked as part of the conspiracy. A “defendant is accountable for all

quantities of contraband with which he was directly involved and, in the case of a jointly

undertaken criminal activity, all reasonably foreseeable quantities of contraband that

were within the scope of the criminal activity that he jointly undertook.” United States v.



7
 “We review for clear error the District Court’s findings of facts regarding the relevant
quantities of drugs attributable to the defendant.” United States v. Perez, 280 F.3d 319,
352 (3d Cir. 2002).
                                            10
Perez, 280 F. 3d 318, 253 (3d Cir. 2002) (quoting U.S.S.G. § 1B1.3 cmt. n.2).8 Here,

there was abundant evidence that Horton was involved in an ongoing joint undertaking to

distribute large quantities of drugs with Braddy, and that the quantity of drugs attributed

to him was reasonably foreseeable and within the scope of that undertaking. Braddy

obtained large quantities of drugs and sent them to Horton in Pennsylvania for

distribution. A344-46. Horton and Braddy worked together to distribute the drugs, obtain

payment, and funnel the money back to California. A344-46, A337-39, A447, A448,

A458-74. Together they “cut” large quantities of drugs for resale and instructed others

how to do so as well. A337-40. Given this and other evidence introduced at trial, the

District Court did not clearly err in concluding that the entire quantity of narcotics

distributed as part of the conspiracy was reasonably foreseeable and within the scope of

the jointly undertaken criminal activity.

       We also reject Horton’s argument that the District Court improperly relied on

“unreliable witnesses” to determine the quantity of drugs attributable to Horton. Horton

Br. 23. Evidence used as a basis for sentencing under the guidelines must “have sufficient

indicia of reliability to support its probable accuracy.” United States v. Freeman, 763

F.3d 322, 337 (3d Cir. 2014) (internal quotation omitted). “Indicia of reliability may

come from, inter alia, the provision of facts and details, corroboration by or consistency

with other evidence or the opportunity for cross-examination.” Id. To the extent that a




8
  Perez cites the Sentencing Guidelines as amended in 2001. As of 2015, a substantively
identical, but slightly modified, version can be found at U.S.S.G. § 1B1.3 cmt. n.3.
                                             11
district court’s findings are based on credibility determinations, we give “even greater

deference to [its] findings.” United States v. Beckett, 208 F.3d 140, 148 (3d Cir. 2000).

       The District Court did not err in relying on the informants’ testimony. Their

testimony had several indicia of reliability. They were consistent with one another in

terms of the price charged for particular types and amounts of drugs, the method of

distribution and payment, and the relationship between Braddy and Horton. A29–33.

Phone records and law enforcement testimony also corroborated the informants’

testimony. A177, A183, A394, A396, A399-401. The District Court also made a general

finding of credibility based on its observations from trial. A29. Given these indicia of

reliability, and the deference afforded the District Court’s credibility determinations, it

did not err in relying on the informants’ testimony.

                                   B. Braddy’s Sentence9

       Braddy’s 235-month sentence was not substantively unreasonable. Where, as here,

a defendant does not allege any procedural error in calculating his sentence, a sentence is

presumed reasonable “unless no reasonable sentencing court would have imposed the

same sentence on that particular defendant for the reasons the [D]istrict [C]ourt

provided.” United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009). Based on the

quantity of drugs attributable to him, Braddy’s base offense level was 34. A22. This was

increased by two levels for his leadership role in the conspiracy, and another two levels

for obstruction of justice. A22. This adjusted base offense level of 38, combined with his


9
  When a defendant challenges the substantive reasonableness of a sentence, we review
the sentence for abuse of discretion. Freeman, 763 F.3d at 335.
                                             12
criminal history resulted in a Sentencing Guideline range of 235-293 months. A22. This

was reduced to 235-240 months because of the statutory cap of twenty years. A34. This

sentence complied with the Sentencing Guidelines and relevant statutory law, and we

cannot say that no reasonable court would have imposed the same sentence.

       Braddy suggests that his sentence is unreasonable because he received a longer

sentence than his co-conspirators. However, “a criminal defendant has no constitutional

right to be given a sentence equal in duration to that of his or her co-defendants.” United

States v. Hart, 273 F.3d 363, 379 (3d Cir. 2001) (internal quotation omitted). Braddy

points out that his co-conspirator Borushak was sentenced to 18 months, and Horton was

sentenced to 188 months. Braddy Br. 25-26. However, the quantity of narcotics

attributable to Borushak was much less than that attributable to Braddy. And Horton was

not subjected to a two-level increase in his base offense level because, unlike Braddy, he

was not an “organizer and leader” of the conspiracy. A22. Given the evidence at trial to

this effect, we cannot say that this two-level increase was an abuse of discretion. We

therefore affirm the District Court’s sentencing decision.

                                   III. CONCLUSION

       Accordingly, we will affirm the Orders of the District Court.




                                            13
