United States v. Lonnell Tucker

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 9, 2021 Decided September 3, 2021

No. 19-3042

UNITED STATES OF AMERICA,

APPELLEE

v.

LONNELL TUCKER,

APPELLANT

Consolidated with 19-3043, 19-3078

Appeals from the United States District Court

for the District of Columbia

(No. 1:18-cr-00267-1)

(No. 1:18-cr-00267-2)

(No. 1:18-cr-00267-6)

Paul S. Rosenzweig, appointed by the court, argued the

cause for appellant Anthony Fields. Amelia Schmidt, appointed

by the court, argued the cause for appellant Abdul Samuels.

With her on the briefs was Matthew G. Kaiser, appointed by

the court. Stephen C. Leckar, appointed by the court, argued

the cause for appellant Lonnell Tucker.

2

Daniel J. Lenerz, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Elizabeth

Trosman, Chrisellen R. Kolb, and Gregory P. Rosen, Assistant

U.S. Attorneys.

Before: KATSAS, RAO, and WALKER, Circuit Judges.

Opinion for the Court filed PER CURIAM.

PER CURIAM: Appellants Anthony Fields, Abdul Samuels,

and Lonnell Tucker were convicted on several drug- and

firearm-related offenses. Each appellant challenges his

convictions, and Samuels also challenges his sentence. We

affirm.

I

In May 2018, a grand jury indicted Fields, Samuels,

Tucker, and three other individuals on several charges related

to an alleged drug-dealing conspiracy. The indictment

stemmed from an investigation by the Bureau of Alcohol,

Tobacco, Firearms and Explosives (ATF) of drug activity at

Next Level Cuts, a barbershop in the District of Columbia.

Much of the government’s evidence came from searches

in the months preceding the indictment. During a traffic stop

in November 2017, officers found what appeared to be a drug

ledger, approximately $9,000, and drug paraphernalia in

Fields’s vehicle. The ATF executed a search warrant on the

barbershop three months later. In a suite above the barbershop,

agents found cash, firearms, more drug paraphernalia, and

large quantities of narcotics — heroin mixed with fentanyl,

PCP, Suboxone, and synthetic marijuana. In the same room,

they also found a document listing a medical appointment for

Fields and a receipt for a purchase made with his credit card.

A search of Fields’s home led to more drug ledgers, two of

3

which listed “Foots” (i.e., Samuels). During the ensuing

searches of Samuels’s home, ATF agents found a shotgun, drug

paraphernalia, crack cocaine, marijuana, and synthetic

marijuana. During the search, Samuels admitted that he kept

the gun under his bed for protection.

Also central to the government’s case was testimony from

Byran Clark, a drug dealer who purportedly worked for Fields.

Clark testified that Fields ran a drug operation out of the

barbershop’s upstairs suite and that Samuels often acted as a

gatekeeper to the suite. He also reported that Tucker sold drugs

out of the barbershop and frequented the suite.

Five defendants proceeded to trial. One pleaded guilty

during the trial. The jury returned a mixed verdict as to the

other four. It acquitted one defendant on the sole charge

against him. It also acquitted Fields and Samuels on several

firearms- and narcotics-related charges. But it found Fields,

Samuels, and Tucker guilty of conspiracy to distribute and

possess with intent to distribute various narcotics. See 21

U.S.C. §§ 841, 846.1 It also found Fields guilty of possessing

with intent to distribute each of the narcotics alleged in the

conspiracy. Id. § 841(a). And it found Samuels guilty of

possessing with intent to distribute cocaine base, id., of

possessing synthetic marijuana, id. § 844, and of felony

possession of a firearm, 18 U.S.C. § 922(g).

The district court sentenced Fields to 192 months of

imprisonment, Samuels to 84 months of imprisonment, and

1

The jury found Fields guilty of conspiring to distribute PCP,

heroin, fentanyl, buprenorphine, marijuana, and synthetic marijuana.

Samuels was found guilty of conspiring to distribute heroin and

fentanyl. And Tucker was found guilty of conspiring to distribute

heroin.

4

Tucker to 60 months of imprisonment. All three appealed and

collectively raise eight claims. We address each claim in turn.

II

We start with Fields, who contends that the police officers

who searched him and his vehicle in November 2017 lacked a

sufficient basis to conduct their traffic stop, violating the

Fourth Amendment. Prior to the search, officers conducting

undercover surveillance on a store known to sell drug

paraphernalia witnessed Fields exit the store. The officers

followed him. Fields drove to a nearby parking lot where

another person entered Fields’s car and then left after less than

two minutes. Suspecting a drug sale and wanting to remain

undercover, the officers called for backup and followed Fields

to another nearby parking lot.

When backup officers arrived, they observed Fields

illegally speed through that parking lot and then park. They

momentarily observed Fields before they approached him and

asked for his driver’s license and registration. “Due to his

nervous behavior and furtive movements,” they then asked

Fields to step out of his car and keep his hands away from his

pockets. App. 145.

Contrary to the instruction, Fields made “constant furtive

movements towards his pockets.” Id. So the backup officers

conducted a pat down, during which Fields spontaneously

uttered “that white powder in my pocket is a supplement.” Id.

The “white powder” was Mannitol, a known cutting agent for

cocaine. Id. at 146.

The backup officers also found $2,000 in cash and a ledger

on Fields. Inside his car, a K-9 found another $7,001 in cash

and multiple bottles with concealed “false bottoms containing

5

trace amounts of white powder.” Id. Fields was subsequently

arrested.

Months later, in February 2018, ATF agents applied for a

search warrant of Fields’s car and the barbershop, which was

suspected of being a stash house. The 18-page application

included a paragraph about the November 2017 stop. After a

court granted the search warrant, ATF agents found additional

evidence of Fields’s drug trafficking.

Before trial, Fields challenged the legality of the vehicular

stop and search warrant. The district court held an evidentiary

hearing on the stop. Sergeant Chaney (one of the two

undercover officers) and Officer Haskett (one of the backup

officers) both testified. The court found their testimony

credible, concluded that there was probable cause to stop

Fields, and denied Fields’s suppression motion. The court also

denied Fields’s motion to suppress evidence from the February

2018 search.

As to the November 2017 stop, Fields challenges the

court’s findings that (1) the officers were credible, and

(2) there was probable cause for the stop. In addition, he

disputes the district court’s rejection of his argument regarding

the 2018 search, and he now adds an argument not raised in the

district court — that the evidence from the February 2018

search warrant should be suppressed as poisonous fruit of the

allegedly unlawful November 2017 stop.

A

As for the officers’ credibility, we review the district

court’s findings for clear error. United States v. Delaney, 955

F.3d 1077, 1081–82 (D.C. Cir. 2020). And we reverse “when

a district court credits exceedingly improbable testimony.”

6

United States v. Delaney, 651 F.3d 15, 18 (2001) (cleaned up)

(emphasis added).

Fields offers three reasons for reversal.

First, he argues that because Officer Haskett did not

immediately stop him or take the necessary steps to cite him

for speeding, no speeding actually occurred. But that

conclusion does not follow from those facts. Officer Haskett

was taking steps to cite Fields for speeding until he discovered

evidence of a more serious crime — Fields’s drug trafficking.

It is therefore understandable the stop did not end how it began.

Second, Fields makes much of Sergeant Chaney’s

statement that he could not recall “[i]f there were any obvious

reasons for the stop.” App. 118. What Chaney actually said,

when asked if he could recall “[i]f there were any obvious

reasons for stop,” was: “I believe there were, but off the top of

my head, I couldn’t tell you what it was. Id. But in any event,

Sergeant Chaney was not even the officer who conducted the

stop. Cause for the stop here depends on what was seen by

Officer Haskett. And he recalled that Fields was speeding.

Third, Fields argues that Officer Haskett’s testimony that

Fields “was going a little fast,” id. at 133, is inconsistent with

his written report that Fields was “traveling at a high rate of

speed through the parking lot” and that officers approached

Fields to confront him “about speeding through the parking

lot,” id. at 145.

That argument, however, distorts Officer Haskett’s

testimony, which included at least five statements about

Fields’s driving:

(1) “I saw a silver Range Rover speeding through the

parking lot”;

7

(2) Fields “was going a little fast for people to — for [him]

to react to people walking across the road”;

(3) “I already had probable cause to stop the vehicle

because of speeding”;

(4) “I don’t know the exact speed limit, but I do know that

he was driving faster than he should if people are

walking with their children and families shopping”; and

(5) Fields’s “[s]peed [was] greater than reasonable.”

Hr’g Tr. 9, 11, 31, ECF No. 246 (emphases added).

Contrary to Fields’s argument, there is no genuine

inconsistency between the written report and the totality of

Officer Haskett’s testimony. One can imagine a case where it

might matter whether a defendant was barely speeding or

dangerously speeding. But this is not that case. All that matters

is that Fields committed a traffic violation.

The district court did not err in finding the officers’

testimony credible. And we, like the district court, rely on it

for the next part of our analysis.

B

We review the district court’s determination that there was

a legal basis for the stop de novo. See Delaney, 955 F.3d at

1081–82.

Because Officer Haskett observed Fields speeding, he had

probable cause for the stop. It is well settled that a traffic stop

“is reasonable where the police have probable cause to believe

that a traffic violation has occurred.” Whren v. United States,

517 U.S. 806, 810 (1996); see also United States v. Sheffield,

8

832 F.3d 296, 302 (D.C. Cir. 2016) (quoting Whren, 517 U.S.

at 810).2

We will not consider Fields’s argument that the speeding

was merely a pretextual justification for the stop because the

Supreme Court’s precedents “foreclose any argument that the

constitutional reasonableness of traffic stops depends on the

actual motivations of the individual officers involved.” Whren,

517 U.S. at 813. So too do this court’s precedents. See

Sheffield, 832 F.3d at 302–03.

We affirm the district court’s denial of Fields’s motion to

suppress.

C

Because Officer Haskett lawfully stopped Fields, there is

no poisonous tree from which poisonous fruit could fall.

Moreover, Fields forfeited his argument that the evidence from

the February 2018 search warrant should be suppressed as fruit

of the poisonous tree by not raising that argument in district

court. “[S]uppression arguments that are not presented to the

trial court are deemed waived and cannot be argued on appeal.”

United States v. Castle, 825 F.3d 625, 632 (D.C. Cir. 2016)

(cleaned up).

III

Fields next argues that the district court erred when it

denied his request to represent himself at trial. Fields had a

difficult relationship with his attorneys throughout the

prosecution. He fired his first attorney in 2018. Three months

2

Even without probable cause, an officer’s reasonable suspicion is

alone enough to justify a traffic stop. See Heien v. North Carolina,

574 U.S. 54, 60 (2014).

9

before trial, he fired that attorney’s successor. And then, seven

days into trial, he tried to fire his third attorney. At that point,

over his co-defendants’ objections, Fields moved to represent

himself. When the district court asked why, Fields said his

attorney had not had time to learn the details of the case. He

also believed his attorney was not “aggressive enough” during

the trial. App. 361. The district court denied Fields’s request,

noting they were far along in the trial and Fields’s self-

representation at that juncture might harm his co-defendants.

Fields asks us to review the district court’s decision de

novo. But when a defendant’s request to represent himself is

made after trial has begun, we review the district court’s

decision for abuse of the court’s “considerable discretion.”

United States v. Noah, 130 F.3d 490, 498 (1st Cir. 1997); see

also United States v. Washington, 353 F.3d 42, 46 (D.C. Cir.

2004) (applying abuse of discretion standard).

“A person accused of a crime has an absolute right, under

the Sixth Amendment, to represent himself only if he asserts

that right before trial.” Washington, 353 F.3d at 46 (emphases

added). But if asserted after a trial begins, the right of self-

representation is qualified. It must yield to other interests when

those interests, such as harm to co-defendants, outweigh it. See

United States v. Bankoff, 613 F.3d 358, 373–74 (3d Cir. 2010)

(“However, after trial has commenced — i.e., at least after the

jury has been empaneled — the right of self-representation is

curtailed. In that context, district courts have discretion to deny

an untimely request to proceed pro se after weighing the

prejudice to the legitimate interests of the defendant against the

potential disruption of proceedings already in progress. How

this balance should be struck is ultimately within the sound

discretion of the district court, and we will review its decision

under a highly deferential abuse-of-discretion standard.”)

(cleaned up); United States v. Walker, 142 F.3d 103, 108 (2d

10

Cir. 1998) (“Once a trial has begun, the defendant’s right to

self-representation is sharply curtailed. In cases in which the

request is made following the commencement of the trial, the

district judge must balance the prejudice to the legitimate

interests of the defendant against the potential disruption of

proceedings already in progress. On appeal, considerable

weight will be given to the district court’s assessment of this

balance.”) (cleaned up); see also United States v. Dougherty,

473 F.2d 1113, 1124 (D.C. Cir. 1972).

Citing this court’s concern in United States v. Washington

that a defendant’s request to make his own closing argument

may be an attempt to tell his story while evading cross-

examination, see 353 F.3d at 46, Fields says, “At most,

Washington stands for the proposition that a defendant may be

denied self-representation when the request is an effort to game

the system.” Appellants’ Br. 42. We disagree. Although a

defendant’s attempt to manipulate the process is a sufficient

reason to deny a mid-trial request for self-representation, it is

not a necessary reason. Prejudice to co-defendants is also a

sufficient reason. So too is disruption of the proceedings.

Bankoff, 613 F.3d at 373.

Here, the district court stated it could not “ignore the

interests and the rights of the other defendants in this case.”

App. 367. It thoroughly explained to Fields his request would

“risk harming” his co-defendants, “whether it’s by a question

you ask; whether it’s by some objection you make or by an

objection you don’t make.” Id. The court then again noted its

duty to “not only consider your rights but the rights of these

four other men” and concluded “the rights of these four other

men will be jeopardized.” Id. Therefore, the court denied

Fields’s mid-trial request, “given the late juncture and the

amount of time that has passed in this case and where we find

ourselves in this case.” Id.

11

“A trial involving a pro se defendant and co-defendants

who are assisted by counsel is pregnant with the possibility of

prejudice.” United States v. Veteto, 701 F.2d 136, 139 (11th

Cir. 1983) (cleaned up). In this case, the reasons to fear that

possibility — listed above by the district court — were

compelling. And the district court could have added to those

reasons Fields’s erratic trial attendance and unwarranted

hostility to fair proceedings. See, e.g., Appellee’s Supp. App.

422 (Fields: “I’m being railroaded here, man. I’m being

railroaded here. I said this from the beginning that we wasn’t

going to get no justice in this court.”); id. at 424 (Fields refused

to attend afternoon trial proceedings); App. 372 (Fields: “I’m

fighting the prosecution and I’m fighting you.” Court: “You’re

not fighting me.” Fields: “I’m definitely fighting you.”).

The district court did not abuse its considerable discretion

when it denied Fields’s request to represent himself.

IV

Fields raises two ineffective-assistance-of-counsel claims

under Strickland v. Washington, 466 U.S. 668 (1984). To

prevail, he must show (1) “that counsel made errors so serious

that counsel was not functioning as the ‘counsel’ guaranteed

the defendant by the Sixth Amendment” and (2) that the error

prejudiced his defense. Harrington v. Richter, 562 U.S. 86,

104 (2011) (cleaned up). “Even under de novo review, the

standard for judging counsel’s representation is a most

deferential one.” Id. at 105. We “must apply a strong

presumption that counsel’s representation was within the wide

range of reasonable professional assistance.” Id. at 104.

Because Fields’s claims are raised for the first time before

this Court, we have two options — remand for an evidentiary

hearing or reject them outright. The latter is permitted when

defendants present their claims in a vague or conclusory

12

manner, when the trial record shows no deficient performance,

or when that record shows no prejudice. United States v.

Sitzmann, 893 F.3d 811, 831–32 (D.C. Cir. 2018) (per curiam);

United States v. Rashad, 331 F.3d 908, 909–10 (D.C. Cir.

2003).

Here, every paragraph of Fields’s brief — with the

possible exception of his third of five paragraphs, noted below

— is conclusory. And even when his arguments are at their

least conclusory, the trial record shows no deficient

performance or prejudice.

A

His first claim is laid out in four paragraphs. He begins in

paragraph one by alleging that the relationship with his

attorneys — recall that he fired the first two, and tried to fire

the third — was “broken” and that their investigations were not

“adequate”:

As we set forth above, Mr. Fields had a broken

relationship with each of his attorneys. With

respect to the first two, Mr. McCants and Mr.

Retureta, one aspect of their ineffectiveness is

already identified in the record but requires

further exploration on remand — namely, their

lack of adequate investigation.

Appellants’ Br. 48.

Then in paragraph two, Fields describes his version of the

evidence against him:

As the Court is aware from the recitation

elsewhere in this brief there was limited direct

evidence against Mr. Fields. No surveillance

13

photos showed him engaging in drug

transactions. The only testimonial evidence

against him came from a cooperating witness

who, like all such witnesses, had mixed

motivation. Thus, the main ground for Mr.

Fields’ conviction lay in the Government’s

attempt to tie him to drugs found in a room on

the second floor above the barbershop. His

alleged constructive possession of the goods

found in that room was a critical piece of the

government’s case in chief.

Id.

Next, in paragraph three, Fields comes as close as he gets

to a non-conclusory argument. He alleges other people had

access to a room above the barbershop where he kept personal

items and instrumentalities of drug trafficking. And he faults

his initial attorneys for not finding them. But he never says

how many people had access, who they were, or why we should

believe that these unidentified people actually exist — aside

from Fields’s entirely self-serving “insiste[nce]” that they do:

And thus, negating that inference of

constructive possession was a vital component

of Mr. Fields’ defense. Throughout the time

prior to trial, Mr. Fields insisted that other

individuals also had keys to the room above the

barbershop — a fact which, if established,

would have afforded him the opportunity to

argue the insufficiency of the government’s

evidence attempting to attribute those drugs to

him. Yet, Mr. Fields’ initial attorney, Mr.

McCants, does not appear to have conducted the

investigation necessary to evaluate Fields’s

14

requests. And Mr. Fields maintains that there is

no evidence that Mr. Retureta pursued that

investigation, either.

Id. at 48–49 (cleaned up).

Even assuming this, Fields’s least conclusory paragraph,

is sufficiently non-conclusory — which is doubtful — it was

neither deficient performance nor prejudicial for his counsel

not to investigate “other individuals” with “keys to the room

above the barbershop” where Fields kept cash, drugs, drug

paraphernalia, and personal items. Connecting others to the

room would not have eliminated the evidence connecting

Fields to the room. So even if his attorney had investigated the

unnamed “other individuals,” and even if they too were drug

dealers, the jury would have learned nothing more than the

unremarkable fact that Fields, a drug dealer, hung out and

shared space with other drug dealers. Cf. Trial Tr. 69, ECF No.

312 (“[D]espite the fact that you heard Mr. Fields in person and

on the phone again and again and again talk about how

everybody has got keys, everybody has access . . . , [m]ultiple

people can jointly have property in their constructive

possession. That’s the concept of both constructive possession

and a conspiracy. It’s teamwork.”).

Finally, in paragraph four, Fields ends his first claim where

he began — by repeating his conclusory claim that his

attorneys should have “conduct[ed] an investigation”:

As the Supreme Court recently put it:

“Counsel . . . has a duty to make reasonable

investigations or to make a reasonable decision

that makes particular investigations

unnecessary. . . . In any ineffectiveness case, a

particular decision not to investigate must be

directly assessed for reasonableness in all the

15

circumstances, applying a heavy measure of

deference to counsel’s judgments.” Here, no

assessment has been made as to the judgment of

counsel in failing to conduct an

investigation — manifestly necessitating an

evidentiary inquiry.

Id. at 49 (cleaned up).

B

Fields’s other (conclusory) claim is laid out in one

paragraph — paragraph five. There he alleges his attorney did

not adequately cross-examine Clark, the government’s witness

who identified him as the leader of the conspiracy. But Fields

identifies no question his attorney should have asked that

would have impeached Clark or exculpated Fields. Instead,

Fields faults his attorney for not mentioning the absence of call

records reflecting Clark’s conversations with Fields. The

absence of evidence, however, is not evidence of absence. So

the absence of call records would not, in Fields’s words, have

“exploit[ed] inconsistencies” in Clarks’s testimony. Id. And

Fields fails to specify any other purported inconsistencies:

In addition, at an evidentiary hearing Mr. Fields

would also establish the reasons for his

dissatisfaction with the representation provided

by Ms. West, whose cross-examination of the

cooperating witness, Byran Clark, was in Mr.

Fields’ view inadequate. She failed to exploit

inconsistencies between the proffers that Mr.

Clark earlier had made to the government and

his sworn testimony. By way of example,

although Clark contended that he was in

frequent contact with Mr. Fields there were no

16

call records — none — reflecting conversations

between them.

Id.

In short, Fields does little more than state his

“dissatisfaction” with his attorneys based on an investigation

and cross-examination he deems inadequate for the vaguest of

reasons and then conclude that this alone entitles him to relief.

But we reject conclusory claims that leave out specific reasons

for counsel’s deficient performance and prejudice under

Strickland. It is not nearly enough for Fields to simply state his

dissatisfaction and then conclude that his dissatisfaction

satisfied Strickland. We will therefore not remand Fields’s

ineffective-assistance-of-counsel claims for an evidentiary

hearing and instead reject those claims.3

V

We now turn to Samuels’s claims. He first contends that

his trial counsel, Joseph Conte, provided ineffective assistance.

Samuels primarily argues that Conte was ineffective under

Cuyler v. Sullivan, 446 U.S. 335 (1980), which requires the

defendant to show “(1) that his lawyer acted under an actual

conflict of interest” and (2) that the conflict caused “an actual

lapse in representation.” United States v. McGill, 815 F.3d

846, 943 (D.C. Cir. 2016) (cleaned up); see Cuyler, 446 U.S. at

349. Because Cuyler relaxes Strickland’s prejudice

3

We also hold a non-conclusory argument would have fared no

better. With regard to Clark’s testimony, the performance of Fields’s

trial attorney was not deficient or prejudicial. She repeatedly elicited

purported inconsistencies between his pre-trial statements and trial

testimony, as did three attorneys for Fields’s co-defendants. Fields’s

attorney even made the point about the absence of text messages in

her closing argument.

17

requirement, we are “reluctant to allow defendants to force

their ineffective assistance claims into the ‘actual conflict of

interest’ framework and thereby supplant the strict Strickland

standard.” United States v. Taylor, 139 F.3d 924, 930 (D.C.

Cir. 1998) (cleaned up). We thus closely scrutinize claims

under Cuyler.

Samuels argues that Conte was conflicted because his

daughter worked for the U.S. Attorney’s Office for the District

of Columbia, which prosecuted Samuels. Although Conte

mentioned his daughter’s job to the prosecutor, he informed

neither Samuels nor the district court. Shortly before

Samuels’s sentencing, the district court learned about the issue,

appointed new counsel, and ordered briefing. The court

concluded that Conte’s failure to disclose his daughter’s job

raised a potential conflict of interest, and it set an evidentiary

hearing on that issue. Later, the court granted the parties’ joint

motion to vacate the hearing without resolving the conflict

issue. Now on appeal, Samuels again contends that Conte had

a conflict of interest.

As discussed, we ordinarily remand “colorable and

previously unexplored claims of ineffective assistance” for

evidentiary hearings. United States v. Marshall, 946 F.3d 591,

596 (D.C. Cir. 2020) (cleaned up); see McGill, 815 F.3d at 942.

But remand is unwarranted where the record establishes that

counsel was not ineffective, where the appellant’s allegations

are vague and conclusory, or where the appellant fails to

identify an issue that “requires a determination of facts.”

Sitzmann, 893 F.3d at 832 (cleaned up). Moreover, our

standard for remand is blunted by “the strong presumption that

counsel made all significant decisions in the exercise of

reasonable professional judgment,” which extends to claims

under Cuyler. Taylor, 139 F.3d at 934 (cleaned up); see also

Burger v. Kemp, 483 U.S. 776, 784 (1987) (“[W]e generally

18

presume that the lawyer is fully conscious of the overarching

duty of complete loyalty to his or her client.”).4

We assume that Conte was conflicted and resolve this

appeal under Cuyler’s second prong, which considers whether

the conflict led to an “actual lapse in representation.” McGill,

815 F.3d at 943 (cleaned up). To satisfy this standard, Samuels

must articulate a strategy that a reasonable, nonconflicted

defense counsel would have pursued. See United States v.

Gantt, 140 F.3d 249, 254 (D.C. Cir. 1998). The conflict must

have caused the failure to pursue this strategy, United States v.

Bruce, 89 F.3d 886, 896 (D.C. Cir. 1996), and must have

“significantly affected counsel’s performance . . . rendering the

4

We are skeptical that Samuels preserved his ineffective-assistance

claim. “The law in this circuit is that a claim of ineffective assistance

must be made in a motion for a new trial ‘when counsel changes prior

to appeal and when there is still a reasonable opportunity to challenge

a conviction in the District Court.’” United States v. Wood, 879 F.2d

927, 933 (D.C. Cir. 1989) (quoting United States v. Debango, 780

F.2d 81, 86 (D.C. Cir. 1986)). Before he appealed, Samuels received

new counsel and pressed a claim that his former counsel was

ineffective because of a conflict of interest. Moreover, after the

district court set an evidentiary hearing to explore the conflict issue,

Samuels — acting through his new counsel — affirmatively moved

to proceed without a hearing. Nevertheless, the government waived

any forfeiture (or waiver) argument by stipulating that it would not

raise that issue in the joint motion to vacate the evidentiary hearing.

See United States v. Layeni, 90 F.3d 514, 522 (D.C. Cir. 1996). The

government’s stipulation is not binding on us, see Weston v.

WMATA, 78 F.3d 682, 685 (D.C. Cir. 1996), and we have significant

concern with remanding now for a hearing that Samuels

affirmatively eschewed. But because we may reject Samuels’s

Cuyler claim on the present record, we accept the stipulation and

proceed to the merits.

19

verdict unreliable, even though Strickland prejudice cannot be

shown,” Mickens v. Taylor, 535 U.S. 162, 173 (2002).

Under this standard, Conte’s failure to tell anyone other

than the prosecutor about his daughter’s job is not itself enough

to establish ineffective assistance. Cuyler “requires proof of

effect upon representation.” Id. Without more, the “inadequate

disclosure” of a conflict is “not an adverse effect on counsel’s

performance.” United States v. Mett, 65 F.3d 1531, 1536 (9th

Cir. 1995); see Blake v. United States, 723 F.3d 870, 878, 881–

82 (7th Cir. 2013). And Samuels does not explain how Conte’s

limited disclosure so significantly affected his performance as

to make the verdict unreliable.

To show an adverse effect, Samuels identifies three points

that he claims Conte failed to raise. According to Samuels,

Conte (1) missed an argument supporting a motion to suppress

his statement about the shotgun found under his bed, (2) failed

to timely oppose expert testimony on drug distribution, and (3)

did not cite evidence to support a multiple-conspiracy

instruction. Samuels posits that Conte avoided these points to

advance his daughter’s interests as an employee in the U.S.

Attorney’s office — i.e., he “pulled punches that a reasonable,

conflict-free counsel would have thrown.” Appellants’ Br. 51.

Samuels concludes that these failures make his verdict

unreliable. We disagree.

To begin, Samuels failed to identify any plausible link

between the alleged conflict and the points that Conte

purportedly missed. See Bruce, 89 F.3d at 896. His theory of

causation — that Conte “pulled punches” to help his daughter

— is belied by the trial record, which shows that the punches

Conte threw were no less forceful than the ones he ostensibly

pulled. For example, as explained below, Conte sought to

sever Samuels’s trial from Fields’s, which would have

20

considerably increased the government’s workload, see

Richardson v. Marsh, 481 U.S. 200, 210 (1987). He also

forcefully challenged the credibility of the government’s

central witness and offered alternative explanations for why

Samuels appeared on Fields’s ledger (to pay for car insurance)

and for why Samuels identified the shotgun (to cover for his

girlfriend). With no distinction between these arguments and

the ones that Conte ostensibly missed, Samuels’s theory of

causation is not plausible.

Separate from causation, none of the purportedly missed

arguments identifies a plausible lapse in representation. The

first concerns Conte’s unsuccessful motion to suppress

Samuels’s admission that he owned the shotgun agents found

in his house. Conte had argued that the admission was

involuntary because Samuels was suffering from heroin

withdrawal at the time. The district court disagreed. On

appeal, Samuels faults Conte for not also arguing that the

statement was involuntary because he was under the influence

of cocaine.

Conte’s failure to make this argument was not a colorable

lapse in representation. The “mere fact that one has taken

drugs, or is intoxicated, or mentally agitated, does not render

consent involuntary.” United States v. Castellanos, 518 F.3d

965, 969 (8th Cir. 2008) (cleaned up). Instead, “coercive police

activity” is necessary to find a confession involuntary.

Colorado v. Connelly, 479 U.S. 157, 167 (1986). And the

district court, in rejecting the heroin-withdrawal argument,

found that the audio recording of Samuels’s confession showed

“no coercive police activity.” App. 89. It would thus have

been futile to argue that Samuels’s consent was involuntary due

to cocaine use. And the failure to raise a meritless objection is

not colorably deficient. See Sitzmann, 893 F.3d at 833.

21

Second, Samuels argues that Conte failed to investigate or

timely challenge testimony from a government expert that the

amount of cocaine seized from Samuels’s home —

approximately 3.5 grams — was consistent with distribution

rather than personal use. Conte moved to exclude the

testimony on the day of the expert’s testimony, but the district

court denied the motion as untimely.

Samuels again identifies no colorable deficiency. For one

thing, he does not explain why the motion to exclude the expert

testimony might have been successful if timely, so this

argument is too vague and conclusory to support remand. See

id. at 832–33. He instead contends that Conte failed to develop

evidence to counter the government’s expert. But Conte forced

the expert to concede that the amount of cocaine in Samuels’s

possession could have been for personal use. And he relied

heavily on the possibility of personal use in his closing

arguments, contending, for example, that Samuels owned a

scale because he bought in bulk and did not want to be cheated.

In other words, Samuels faults Conte for not offering

cumulative evidence to support personal use, which is not

enough for remand. See id. at 833.

Finally, Samuels contends that Conte botched his request

for a multiple-conspiracy instruction, which would have

clarified that the jury needed to find that Samuels was a

member of the same conspiracy charged in the indictment to

support a guilty verdict. In denying Conte’s request, the district

court reasoned that there was no evidence of Samuels

“interacting with anyone else . . . who’s not identified as a

conspirator in this case.” App. 609. Samuels contends that

there was such evidence, which Conte missed, namely Clark’s

testimony that Samuels obtained crack cocaine to distribute in

Virginia from “a guy named Miguel Harris.” Id. at 391. The

22

indictment mentioned neither Harris nor a conspiracy to

distribute crack cocaine.

It is at least plausible that Samuels would have received

the multiple-conspiracy instruction had Conte flagged this

evidence. If requested, a district court must give the instruction

where the “record evidence supports the existence of multiple

conspiracies.” United States v. Sanders, 778 F.3d 1042, 1047

(D.C. Cir. 2015) (cleaned up). And Clark testified that Samuels

“started purchasing” crack from Harris for distribution.

App. 391. This testimony could perhaps support the inference

that Harris was a “regular source,” which would be enough to

create a separate conspiracy. United States v. Morris, 836 F.2d

1371, 1374 (D.C. Cir. 1988).

But Conte’s failure to secure the instruction is not enough

to show that a conflict “significantly affected” his performance

and made the verdict “unreliable.” Mickens, 535 U.S. at 173.

Whatever the contours of this standard, the failure to recall a

single line of testimony in a three-week trial that might support

a peripheral jury instruction cannot fairly be described as

significant. Moreover, it casts no doubt on the verdict, which

found that Samuels was guilty of conspiring to distribute heroin

and fentanyl, not crack cocaine. Samuel’s case thus falls well

outside Cuyler, which “is designed to protect a defendant when

it is impossible to reconstruct what might have occurred

without counsel’s conflict of interest.” Plunk v. Hobbs, 766

F.3d 760, 766 (8th Cir. 2014).

Samuels alternatively contends that Conte was ineffective

under Strickland, which requires him to show that his counsel’s

performance was deficient and prejudicial, see 466 U.S. at 687.

For the reasons given above, Samuels has not proven deficient

performance. And because he does not satisfy Cuyler’s lower

standard to prove a “significant[]” effect on representation, he

23

also fails to satisfy Strickland’s more demanding requirement

of prejudice. Mickens, 535 U.S. at 173.

In sum, Samuels has established no colorable claim of

ineffective assistance under Cuyler or Strickland. His Cuyler

claim fails because he has not plausibly proven that Conte’s

alleged conflict of interest caused an adverse effect that rises to

the level of an actual lapse in representation. And his

Strickland claim fails for lack of any colorable case for

deficient performance or prejudice.

VI

Samuels next argues that the district court impermissibly

limited his ability to cross-examine Clark, the government’s

central witness, about his prior bad acts. When Clark testified,

he had previously pleaded guilty to kidnapping and obstruction

of justice as part of a plea agreement that depended on his

cooperation against Samuels in this case. Samuels claims that

Clark earned the kidnapping charge by taking a person hostage

at gunpoint, robbing him, and pointing a gun at the victim’s

head. For obstruction of justice, Samuels contends that Clark

directed a third party to threaten a witness to not testify. Clark

also had other prior convictions, including one for murder.

Samuels sought to cross-examine Clark about his convictions

and the facts underlying them to impeach Clark’s credibility

and to establish that the plea agreement gave Clark a bias.

The district court adopted a halfway approach, explaining

that it had to balance the probative value of Clark’s prior bad

acts against the risk that the facts would “just dirty [him] up

because he’s a bad dude.” App. 428. The court allowed

Samuels to cross-examine Clark about the existence of his prior

convictions; about the facts underlying charges the government

reduced, dropped, or never brought due to Clark’s cooperation;

and about other possible sources of bias. But it excluded

24

questions about the facts underlying his convictions, reasoning

that they would be “more prejudicial than probative.”

Appellee’s Supp. App. 490. It also agreed with the government

that those questions risked a “circus within a circus, a trial

within a trial” about Clark. App. 433–34. Finally, it refused to

let Samuels question Clark about the alleged witness

intimidation after concluding that Samuels had no factual basis

in the record to assume a threat occurred.

Samuels contends that the district court’s ruling violated

both the Confrontation Clause and Federal Rule of Evidence

403. Under the Confrontation Clause, a trial court “may limit

cross-examination only after there has been permitted, as a

matter of right, a certain threshold level of cross-examination.”

United States v. Hall, 945 F.3d 507, 513 (D.C. Cir. 2019)

(cleaned up). That threshold is satisfied “so long as defense

counsel is able to elicit enough information to allow a

discriminating appraisal of a witness’s motives and bias.” Id.

(cleaned up). Otherwise, district courts “retain wide latitude”

to “impose reasonable limits on . . . cross-examination” under

the Federal Rules of Evidence. Delaware v. Van Arsdall, 475

U.S. 673, 679 (1986). Relevant here, Rule 403 allows courts

to exclude evidence “if its probative value is substantially

outweighed by a danger of . . . unfair prejudice” or “confusing

the issues.” We review limits on cross-examination for an

abuse of discretion. United States v. Lin, 101 F.3d 760, 768

(D.C. Cir. 1996); Henderson v. Geo. Wash. Univ., 449 F.3d

127, 133 (D.C. Cir. 2006).

The district court did not violate the Confrontation Clause.

Such a violation occurs “only when the court bars a legitimate

line of inquiry that might have given the jury a significantly

different impression of the witness’s credibility.” United

States v. Miller, 738 F.3d 361, 375 (D.C. Cir. 2013) (cleaned

up). Samuels elicited ample testimony to give the jury the

25

impression that Clark was lawless and had a substantial reason

to testify in favor of the government. Among other impeaching

facts, the jury learned about Clark’s cooperation agreement; his

prior convictions; and that he robbed and kidnapped a man,

stole a car, and used a firearm during various crimes. This

cross-examination easily clears the threshold required by the

Confrontation Clause. See, e.g., Hall, 945 F.3d at 513 (no

violation where defendant cross-examined government witness

on guilty plea in cooperation deal).

Nor did the district court abuse its discretion under Rule

403. Without acknowledging the court’s concerns about unfair

prejudice, Samuels argues that the salacious facts underlying

Clark’s prior convictions are “information the jury should have

heard to evaluate whether someone with that little regard for

human life and the law would have any compunction about

lying under oath to reduce his time in prison.” Appellants’ Br.

75. But while “evidence of lawlessness can undermine the

perpetrator’s probable truthfulness . . . admission of such

evidence is subject to the sound discretion of the trial court.”

United States v. Garcia Sota, 948 F.3d 356, 363 (D.C. Cir.

2020); see also FED. R. EVID. 609(a)(1)(A). And the court here

acted well within its discretion in concluding that the risk of

unfair prejudice stemming from the facts it excluded

substantially outweighed any cumulative probative value. This

Court has long acknowledged the risk that evidence of prior

criminal activity would impermissibly lead juries to discredit

witnesses because they are “bad men,” rather than because they

are biased or not credible. United States v. Fox, 473 F.2d 131,

135 (D.C. Cir. 1972). Thus, “when evidence of a prior

conviction is admitted for purposes of impeachment, cross-

examination is usually limited to the essential facts rather than

the surrounding details of the conviction.” United States v.

Baylor, 97 F.3d 542, 544 (D.C. Cir. 1996). Not only did the

district court allow cross-examination on the essential facts of

26

Clark’s convictions, it let the jury hear about a wide range of

Clark’s other criminal activity. We find no error in the district

court’s limited restrictions on Clark’s cross-examination.

Samuels also contends that the details underlying the

obstruction charge are particularly probative because they

involved a threat to intimidate a witness. But the district court

did not limit questions about witness intimidation based on

Rule 403. As noted, it restricted those questions because

Samuels lacked a factual basis to ask them. See Lin, 101 F.3d

at 768 (“counsel must have a reasonable basis for asking

questions on cross-examination which tend to incriminate or

degrade the witness”) (cleaned up). In his reply brief, Samuels

objects that the district court erroneously discounted evidence

that provided a factual basis for the questions. This objection

is forfeited, see M.M.V. v. Garland, 1 F.4th 1100, 1111 (D.C.

Cir. 2021), and also meritless. Samuels points to no record

evidence suggesting that Clark threatened a witness. Instead,

he gestures at unspecified grand-jury testimony that he admits

is not in the record, which is not good enough. See United

States v. Boyd, 54 F.3d 868, 871–72 (D.C. Cir. 1995) (basis for

cross-examination must be in the record). Samuels also faults

the government for not providing further evidence to support

its representation that Clark’s obstruction charge did not

involve threats. But an objection to limits on cross-

examination is not the appropriate vehicle to challenge the

government’s compliance with discovery obligations. Samuels

held the burden of proffering a sufficient factual basis to

question Clark about threats. See Lin, 101 F.3d at 768. And

the district court did not abuse its discretion when it ruled that

he failed to satisfy that burden.

Moreover, any error by the district court would have been

“rendered fully harmless by the broad range of other heinous

conduct that the court allowed defense counsel to bring out in

27

cross-examination.” Garcia Sota, 948 F.3d at 363; see Van

Arsdall, 475 U.S. at 684; United States v. Whitmore, 359 F.3d

609, 622 (D.C. Cir. 2004). As explained, Samuels extracted

testimony from Clark about his convictions and the facts

underlying several violent crimes for which the government

declined to prosecute him. Samuels’s inability to elicit similar

impeaching evidence was harmless because the cross-

examination “was enough to enable the jury to assess the

relation between [Clark’s] lawlessness and his propensity for

truthfulness.” Garcia Sota, 948 F.3d at 363.

In sum, the district court acted well within its discretion

under the Confrontation Clause and Rule 403 in limiting

Clark’s cross-examination, and any improper limits would

have amounted to harmless error.

VII

We next consider the arguments made by Samuels and

Tucker that the district court abused its discretion in denying

their motions to sever their trials from Fields’s trial. Samuels

and Tucker argue that severance was warranted due to

“spillover” prejudice resulting from the disparity in evidence

between them and Fields as well as Fields’s obstreperous

behavior during trial. Fields, the undisputed ringleader of the

drug distribution conspiracy, frequently displayed less than

exemplary behavior in court. At one point, he absented himself

from the trial for part of a day. Towards the end of trial, Fields

testified on his behalf. He was the only defendant to do so, and

the testimony did not go well. Fields gave conflicting and

unbelievable explanations for the evidence against him,

accused the government of planting evidence, speculated about

the government’s motives for prosecuting him and his co-

defendants, and became combative with the prosecutor and the

district court. Both before and after Fields’s testimony,

28

Samuels and Tucker moved to sever their trials on the ground

that Fields’s lies and misbehavior would be held against them

by the jury. The district court denied this motion, explaining

that Fields’s credibility was a matter for the jury to decide and

that Fields did not say anything “about the other defendants that

already didn’t come in the government’s case-in-chief.” App.

725.

“We review the denial of a motion to sever for abuse of

discretion.” United States v. Wilson, 605 F.3d 985, 1015 (D.C.

Cir. 2010). The Federal Rules of Criminal Procedure permit

joinder of defendants “alleged to have participated in the same

act or transaction, or in the same series of acts or transactions,

constituting an offense or offenses.” FED. R. CRIM. P. 8(b).

Joint trials are preferred in federal criminal cases because they

“promote efficiency and serve the interests of justice by

avoiding the scandal and inequity of inconsistent verdicts.”

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

The preference for joint trials is “‘especially strong’ when ‘the

respective charges require presentation of much the same

evidence, testimony of the same witnesses, and

involve . . . defendants who are charged, inter alia, with

participating in the same illegal acts.’” Wilson, 605 F.3d at

1016 (cleaned up). We find that neither the disparity in

evidence between co-defendants, nor Fields’s behavior during

trial, warranted severance because any risk of prejudice was

curable with appropriate instructions.

A joined defendant may seek to sever his trial from that of

his co-defendants. “If the joinder

of . . . defendants . . . appears to prejudice a defendant . . . ,

the court may . . . sever the defendants’ trials, or provide any

other relief that justice requires.” FED. R. CRIM. P. 14(a)

(emphasis added). The permissive language of this rule makes

clear that severance is not required “even if prejudice is

29

shown.” Zafiro, 506 U.S. at 538–39. Instead, Rule 14 grants a

district court “significant flexibility to determine how to

remedy any potential risk of prejudice posed by the joinder of

multiple defendants in a single trial.” United States v. Moore,

651 F.3d 30, 95 (D.C. Cir. 2011) (per curiam). Severance is

the exception rather than the rule and is required only when

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. Although a serious risk may arise

when “defendants are tried together in a complex case and they

have markedly different degrees of culpability,” even in cases

where the risk of prejudice is high, “less drastic measures, such

as limiting instructions, often will suffice to cure any risk of

prejudice.” Id. In light of these principles, motions to sever

should be granted “sparingly.” United States v. Celis, 608 F.3d

818, 844 (D.C. Cir. 2010).

Appellants “carr[y] the burden of demonstrating prejudice

resulting from a failure to sever.” United States v. Gooch, 665

F.3d 1318, 1336 (D.C. Cir. 2012). Samuels and Tucker here

assert spillover prejudice, namely the risk “the jury would use

evidence of one defendant’s guilt against another.” United

States v. Spriggs, 102 F.3d 1245, 1256 (D.C. Cir. 1996). They

maintain this prejudice arose from trying them, peripheral

players in the conspiracy, together with Fields, “a perjurious

and obstructionist lead defendant.” Appellants’ Br. 97.

Samuels and Tucker fail to demonstrate prejudice.

First, Samuels and Tucker have not demonstrated

prejudice from evidentiary spillover. Disparity in evidence

requires severance “when the evidence against one defendant

is ‘far more damaging’ than the evidence against the moving

party,” but will not require severance in a conspiracy trial when

there is “substantial and independent evidence of each

30

defendant’s significant involvement in the conspiracy.”

Moore, 651 F.3d at 95–96 (cleaned up). “[A]bsent a dramatic

disparity of evidence, any prejudice caused by joinder is best

dealt with by instructions to the jury to give individual

consideration to each defendant.” Id. at 95 (cleaned up). The

varying roles played by members of a conspiracy will “not

render joint trial inappropriate as long as the jury can

reasonably compartmentalize the substantial and independent

evidence against each defendant.” United States v. Straker,

800 F.3d 570, 628 (D.C. Cir. 2015) (per curiam). As we will

explain in Part VIII, the government introduced substantial and

independent evidence of Samuels’s and Tucker’s involvement

in the conspiracy. Although Samuels and Tucker played a

subordinate role in the conspiracy led by Fields, we hold “the

disparity of evidence did not rise to a level necessary to

mandate severance.” Moore, 651 F.3d at 96.

Second, Samuels and Tucker have not established

prejudice from Fields’s misbehavior during trial. Courtroom

misconduct by a co-defendant must be especially egregious to

mandate severance. See, e.g., United States v. Rocha, 916 F.2d

219, 229 (5th Cir. 1990) (no severance required when co-

defendant “mouthed the words, ‘You are dead,’ and moved a

finger across his throat” during a witness’s direct examination);

United States v. Marshall, 458 F.2d 446, 448, 452 (2d Cir.

1972) (no severance required when a co-defendant directed

obscenities at the court and witnesses, absented himself, threw

a chair towards the jury box, and cut his wrists during

summation). “Cautionary instructions . . . should remain the

primary weapons against improper jury bias.” United States v.

Mannie, 509 F.3d 851, 857 (7th Cir. 2007). Fields’s behavior

was mildly disruptive: he was combative on the stand, refused

to attend part of the trial, and made demonstrably false

statements during his testimony. This misbehavior is simply

not so beyond the pale as to mandate severance.

31

At bottom, this is not a case in which curative instructions

were ineffective against potential prejudice. The district court

gave several careful and tailored instructions throughout the

trial. When Fields failed to show up one day, the district court

instructed the jury that his “absence should not . . . be viewed

as evidence or held against any other defendant in this matter

in any way whatsoever.” App. 347. The district court also

instructed the jury that “each defendant is entitled to have the

issue of his guilt as to each of the crimes for which he’s on trial

determined from his own conduct and from the evidence that

applies to him as if he were being tried alone.” Appellee’s

Supp. App. 784–85. The instructions explicitly stated that the

jury’s verdict as to one defendant should not “influence [its]

verdict with respect to any other defendant as to that count or

any other count in the Indictment.” Id. at 785. The

effectiveness of the district court’s instructions is indicated by

the jury returning mixed verdicts as to each of the defendants,

including Fields. See United States v. Gilliam, 167 F.3d 628,

636 (D.C. Cir. 1999) (explaining that mixed “verdicts indicate

that the jury was able to distinguish between the defendants”).

We presume that juries follow the court’s instructions when, as

here, there is no evidence to the contrary. Id.

The district court cured any potential prejudice to Samuels

and Tucker with limiting instructions and did not abuse its

discretion in denying their motions to sever.

VIII

We turn next to Samuels’s and Tucker’s challenge to the

sufficiency of the evidence to sustain their convictions for

conspiracy to distribute heroin under 21 U.S.C. § 846.

To overturn a jury verdict for insufficient evidence, “a

defendant faces a high threshold.” United States v. Washington,

12 F.3d 1128, 1135 (D.C. Cir. 1994). In reviewing for

32

sufficiency of the evidence, we consider “‘whether, after

viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.’”

United States v. Gaskins, 690 F.3d 569, 576–77 (D.C. Cir.

2012) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

In applying this standard, we “draw[] no distinction between

direct and circumstantial evidence, and ‘giv[e] full play to the

right of the jury to determine credibility, weigh the evidence

and draw justifiable inferences of fact.’” United States v.

Williams, 836 F.3d 1, 6 (D.C. Cir. 2016) (quoting United States

v. Battle, 613 F.3d 258, 264 (D.C. Cir. 2010)).

To convict Samuels and Tucker of conspiracy to distribute

heroin, the government had to prove they acted knowingly and

with the “specific intent to further the conspiracy’s objective.”

United States v. Childress, 58 F.3d 693, 708 (D.C. Cir. 1995).

The evidence here easily passes muster under our deferential

standard of review.

With respect to Samuels, sufficient evidence supports that

he knowingly furthered the conspiracy to distribute heroin.

Fields controlled operations in the drug distribution conspiracy

from the suite above the barbershop, where agents found

approximately $60,000 worth of heroin as well as other drug

paraphernalia. The evidence established that Samuels assisted

Fields in this endeavor. Clark, the cooperating witness who

testified that he frequently went to the barbershop to obtain

heroin from Fields, placed Samuels regularly with Fields while

Fields packaged drugs for distribution. GPS data from

Samuels’s cellphone also put him in the vicinity of the

barbershop hundreds of times during the life of the conspiracy.

As Clark testified, Samuels assisted Fields by opening the door

and controlling access to the upstairs suite where the drugs

were, which was corroborated by text messages to Samuels that

33

included “let me in” and “open the door.” Appellee’s Supp.

App. 191–92. Text messages also demonstrated that Samuels

was in frequent contact with other members of the conspiracy

and used coded references to drug transactions. Moreover,

Clark testified that Samuels had delivered five grams of heroin

on one occasion when Clark was in a car with two other

members of the conspiracy. Viewed in the light most favorable

to the government, this evidence, combined with Samuels’s

frequent presence in the barbershop while Fields, the leader of

the conspiracy, engaged in drug transactions, is sufficient to

sustain Samuels’s conviction for conspiracy to distribute

heroin. See, e.g., Childress, 58 F.3d at 712 (finding the

evidence sufficient when defendants personally handled drugs,

prepared them for sale, and did so at the direction of the

conspiracy’s leader).

Sufficient evidence also supported Tucker’s conviction

and established his role as a street-level dealer in the

conspiracy. Clark’s testimony put Tucker at the barbershop

frequently, “[a]cting like [Tucker had] a license to sell

drugs . . . [h]aving . . . no discretion, . . . no trying to hide it or

anything, just out in the open.” Appellee’s Supp. App. 457.

Tucker’s frequent presence at the barbershop was corroborated

by GPS data and law enforcement surveillance. Notably,

agents observed Tucker engaged in “what appeared to be a

hand-to-hand narcotics transaction” on the street in front of the

barbershop. Id. at 363. Clark testified that he saw Tucker

coming from the upstairs suite of the barbershop adjusting his

“lower crotch area,” and explained that when he used to sell

drugs, he hid his stash in his “crotch area” to avoid detection

by the police. Id. at 458. Clark also explained that heroin could

be pink or tan depending on the substance it was cut with and

that dealers often used slang to talk about narcotics. Tucker’s

text messages mentioned selling pink shirts and tan shoes,

statements the jury could reasonably infer were references to

34

narcotics. Given Tucker’s close relationship with Fields and

frequent presence at the barbershop, the jury also could

reasonably infer that Tucker obtained the heroin he sold from

Fields. Viewing the evidence in the light most favorable to the

government, sufficient evidence supported Tucker’s

conviction for conspiracy to distribute heroin.

Samuels and Tucker also seek to rely on Gaskins, in which

this court found the evidence insufficient to sustain a drug-

trafficking conspiracy conviction. In that case, despite

extensive police surveillance and searches, no evidence put

Gaskins in the presence of drugs, nor did any witness connect

him to the conspiracy. See 690 F.3d at 572. Tucker argues that

the evidence against him is similarly flimsy because he did not

directly text members of the conspiracy, and Clark’s testimony

and the street-level buys at most established his role as an

independent street-level dealer. Samuels also points to the lack

of controlled buys, wiretaps, or surveillance as reasons why the

evidence against him was insufficient. These arguments

founder on the fact that the evidence against both Samuels and

Tucker was far more robust than the evidence in Gaskins.

Unlike Gaskins, both Samuels and Tucker “discussed drugs,

distributed drugs, [and were] in the presence of drugs

connected to the conspiracy.” Gaskins, 690 F.3d at 577; see

also United States v. Shi, 991 F.3d 198, 207 (D.C. Cir. 2021)

(distinguishing Gaskins as a case in which there was an

“overwhelming lack of evidence”).

For these reasons, the evidence is sufficient to sustain the

convictions of Samuels and Tucker.

IX

Tucker also challenges his sentence, arguing that the

district court erred in calculating the quantity of heroin

attributable to him for purposes of setting his Sentencing

35

Guidelines range. Although the district court’s calculation was

based on inferences, those inferences were reasonable in light

of the record.

We “review[] a sentence imposed under the Guidelines to

determine whether it is ‘reasonable.’” United States v. Flores,

995 F.3d 214, 219 (D.C. Cir. 2021) (quoting United States v.

Blalock, 571 F.3d 1282, 1285 (D.C. Cir. 2009)). This

determination involves two steps: First, we ensure the district

court did not commit a “significant procedural error,” and

second, we review whether the sentence is objectively

reasonable. United States v. Settles, 530 F.3d 920, 923 (D.C.

Cir. 2008) (quoting Gall v. United States, 552 U.S. 38, 51

(2007)). Tucker challenges only the district court’s

methodology for calculating the drug quantity attributable to

him — a procedural error. Significant procedural errors

include “failing to calculate (or improperly calculating) the

[Sentencing] Guidelines range, . . . selecting a sentence based

on clearly erroneous facts, or failing to adequately explain the

chosen sentence.” Gall, 552 U.S. at 51.

A defendant’s sentence for a drug conspiracy is based on

the amount of drugs attributed to him. Under the Sentencing

Guidelines, a defendant’s base offense level is derived from his

“relevant conduct,” which includes the drug quantity involved

for an offense. U.S.S.G. § 1B1.3 (2018) (cleaned up); United

States v. Burnett, 827 F.3d 1108, 1120 (D.C. Cir. 2016). When

necessary, such as when there has been “no drug seizure or the

amount seized does not reflect the scale of the offense,” the

district court must approximate the drug quantity. U.S.S.G.

§ 2D1.1 cmt. n.5. Further, when a defendant is part of a drug

conspiracy, his relevant conduct includes “all reasonably

foreseeable acts and omissions of others in furtherance of the

jointly undertaken criminal activity.” United States v. Bostick,

791 F.3d 127, 158 (D.C. Cir. 2015) (quoting U.S.S.G.

36

§ 1B1.3(a)(1)(B)). “We review the District Court’s

determination of drug quantity relevant for sentencing under a

clear error standard.” United States v. Mack, 841 F.3d 514, 527

(D.C. Cir. 2016).

The district court attributed 75 grams of heroin to Tucker.

Although the presentence report found Tucker’s relevant

conduct included 546.7 grams due to his involvement in the

conspiracy, the district court declined to hold Tucker

responsible for all the sales made from the barbershop or to

Clark. Instead, it estimated the amount of heroin for which

Tucker was personally responsible. Based on the amount of

heroin sold by Tucker to the confidential informant (0.58

grams), the GPS data, Clark’s testimony, and surveillance, the

district court estimated that Tucker sold 0.5 grams of heroin

five times weekly for thirty weeks, totaling 75 grams. That

quantity resulted in a Guidelines range of 51 to 63 months, and

with Tucker’s career offender enhancement, the range

increased to 210 to 262 months. The district court found this

range overstated Tucker’s criminal history, so it used the

sentences received by other members of the conspiracy as

benchmarks and ultimately sentenced Tucker to sixty months’

imprisonment. The district court’s calculation of the drug

quantity attributable to Tucker, which was based on reliable

evidence in the record, was not clearly erroneous.

Tucker argues the district court erred by using a method

for calculating the drug quantity for his base offense level that

was “unduly speculative.” Appellants’ Br. 105. We find,

however, that the district court employed a reasonable method,

which resulted in a conservative estimate. While it found

“Tucker was part of a core group of individuals that operated

out of that barbershop,” Appellee’s Supp. App. 794, it chose

not to attribute the 546.7 grams of heroin recommended by the

presentence report. The court instead used the amount of

37

heroin Tucker distributed in a single controlled buy to

extrapolate five similarly sized sales per week for thirty weeks.

Although one sale is a small sample size, that does not render

the court’s extrapolation unduly speculative, particularly when

it results in a conservative estimate. Cf. United States v.

Correa-Alicea, 585 F.3d 484, 491 (1st Cir. 2009) (affirming a

district court’s use of two controlled purchases multiplied by a

“highly conservative” “estimate of one transaction per day”).

In addition, the district court’s estimation that five sales per

week were of heroin is reasonable based on Tucker’s frequent

presence at the barbershop and the quantity of heroin seized

there. “[D]rug quantity calculations are an art, not a science,”

and the district court chose a reasonable method. United States

v. Block, 705 F.3d 755, 760–61 (7th Cir. 2013) (explaining “we

afford trial courts some room for speculation and reasonable

estimation so long as percentages and quantities were not

pulled out of thin air”) (cleaned up).

In sum, the district court did not clearly err in calculating

the drug quantity attributable to Tucker.

X

For the foregoing reasons, we affirm.

So ordered.