PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 04-4618

AARON DEMARCO FOSTER, a/k/a Turk,

a/k/a Ace, a/k/a Little Aaron,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 04-4619

KEON MOSES, a/k/a Black,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 04-4620

MICHAEL LAFAYETTE TAYLOR, a/k/a

Mike Mumbles,

Defendant-Appellant. 

Appeals from the United States District Court

for the District of Maryland, at Baltimore.

Catherine C. Blake, District Judge.

(CR-02-410-CCB)

Argued: September 26, 2007

Decided: November 13, 2007
Before WILKINSON, Circuit Judge,

HAMILTON, Senior Circuit Judge, and

T. S. ELLIS, III, Senior United States District Judge

for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Senior Judge Hamilton wrote the

opinion, in which Judge Wilkinson and Senior Judge Ellis joined. 

COUNSEL

ARGUED: Robert Whelen Biddle, NATHANS & BIDDLE, L.L.P.,

Baltimore, Maryland; Arcangelo Michael Tuminelli, Baltimore,

Maryland, for Appellants. Stephanie Agli Gallagher, Assistant United

States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,

Baltimore, Maryland, for Appellee. ON BRIEF: Robert H. Waldman,

Annapolis, Maryland, for Appellant Michael Lafayette Taylor; Teresa

Whalen, Silver Spring, Maryland, William B. Purpura, Baltimore,

Maryland, for Appellant Aaron Demarco Foster. Rod J. Rosenstein,

United States Attorney, Andrea L. Smith, Assistant United States

Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

OPINION

HAMILTON, Senior Circuit Judge: 

These are the consolidated appeals of three defendants, Keon

Moses, Michael Taylor, and Aaron Foster, who were tried, convicted,

and sentenced for conspiracy to possess with the intent to distribute

and to distribute fifty grams or more of cocaine base (crack), 21

U.S.C. § 846, and for various related substantive offenses. For the

reasons stated below, we affirm the district court’s judgments. 

2 UNITED STATES v. FOSTER
I

A

This case concerns a drug conspiracy taking place within an

approximately six-square block neighborhood in West Baltimore,

Maryland known as "Lexington Terrace." (J.A. 329). According to the

government’s evidence produced at trial, between 1999 and late 2002,

rampant drug dealing took place in Lexington Terrace and numerous

acts of violence were performed in the neighborhood to protect this

drug dealing activity. 

Put succinctly, the Lexington Terrace neighborhood was an openair drug market in which substantial quantities of crack were sold on

a daily basis during the charged time frame. All of the dealers in the

neighborhood had grown up in Lexington Terrace or worked with a

person who had grown up there. Some dealers belonged to a particular drug distribution gang within the neighborhood, while others did

not. Moreover, dealers often bore tattoos, which recognized their relationship to the neighborhood.

In some respects, Lexington Terrace dealers worked independent

of other dealers. For example, different dealers often had different

sources of supply. Some dealers sold their drugs in a distinctive colortop vial, which allowed users to associate the color-top of the vial

with the quality of the product. Moreover, dealers competed with

other dealers for business; thus, when a vehicle approached with

somebody looking for drugs, multiple dealers, perhaps from multiple

gangs, approached the vehicle trying to consummate a sale. 

In other respects, the Lexington Terrace drug dealers worked in

consort with each other. They shared stash houses and firearms. They

respected a user’s selection of a particular dealer, which allowed

numerous dealers to operate in the area, even dealers not associated

with a gang. A dealer’s decision to leave a drug dealing gang generally was respected, and the departing dealer enjoyed the freedom to

deal drugs on his own. Neighborhood dealers also made change for

each other on occasion. For their mutual aid and protection, Lexington Terrace dealers alerted each other to the presence of law enforcement authorities and jointly controlled the area, through the use of

UNITED STATES v. FOSTER 3
intimidation and violence, to the exclusion of others. Dealers who

experienced legal troubles often received financial assistance from

other neighborhood dealers. For example, a dealer’s legal expenses

might be paid by another dealer or a dealer incarcerated might receive

some money to spend in prison. Dealers returning to the neighborhood from a prison stint often received drugs on the front to sell from

other dealers, which allowed the newly-released dealer to reestablish

himself financially. 

This peaceful coexistence between the neighborhood dealers

worked to the benefit of both users and the neighborhood dealers.

Users enjoyed the regular availability of drugs in the neighborhood,

while the dealers were able to thrive financially with steady business

and little violence amongst themselves. 

It was within this environment that Moses, Taylor, and Foster sold

substantial quantities of crack. Foster was from the Lexington Terrace

neighborhood and had a "Terrace Life" tattoo on his right forearm.

(J.A. 453). Several witnesses testified that they had purchased crack

from Foster. Moreover, Aaron Butler, a neighborhood dealer, testified

that, in 1999, Foster was selling grey-top vials of crack and was using

Monique Andrews’s house as his stashhouse. Butler further testified

that, in 2000, he and Foster were selling crack together. Another witness testified that Foster was at times in charge of supervising his

gang’s drug activity. Foster was incarcerated in July 2000, and, upon

his release in October 2001, he returned to Lexington Terrace and

began dealing crack again. 

Moses also grew up in the Lexington Terrace neighborhood. Butler

testified that, in 1999, Moses was selling crack with Brandon Allison,

using, like Foster, Monique Andrews’s house as a stashhouse. Moses

was arrested at that house on June 15, 1999, with the keys to the

house in his pocket. 

Following a period of incarceration, Moses was released in August

2001 and immediately began selling purple-top vials of crack with

Taylor. Moses was stopped in his vehicle by a law enforcement officer in September 2001 and had 300 empty purple-top vials in his car.

Greg Spain was fronting narcotics to Moses in August/September

2001 because Moses had just been released from prison. 

4 UNITED STATES v. FOSTER
Although he was eventually incarcerated on state charges of committing a double murder, Moses remained a participating member of

the conspiracy. From jail, he wrote a letter to Taylor instructing Taylor to kill one of the witnesses ready to testify against him. 

Taylor grew up in the Lexington Terrace neighborhood and had

Lexington Terrace tattoos. In mid to late 2001, Taylor was selling

purple-top vials of crack with Moses. Taylor also gave money to

Moses while Moses was on the run after the double homicide. At various times, Taylor sold crack and shared stashhouses with other Lexington Terrace dealers. 

In January 2002, after he turned eighteen-years old, Taylor’s participation in the drug conspiracy began to escalate.1

 He began dealing

with Brandon Allison, another Lexington Terrace dealer. That same

month, Taylor was arrested in two house raids at a stashhouse owned

by Pamela Mack and shared by Lexington Terrace dealers. In one of

the raids, Taylor’s fingerprint was found on a gun recovered at the

residence. Taylor later admitted to law enforcement authorities that he

was a drug dealer in the Lexington Terrace neighborhood. 

In addition to each defendants’ extensive drug dealing activities,

the government’s case focused on related crimes of violence. The first

of these occurred on September 23, 2001 at 303 North Calhoun Street

in Baltimore, in the basement of a row house owned by Charles

Brockington III’s grandmother. On that day, Moses and Taylor,

accompanied by Marcus Baskerville,2 killed Gregory Spain and Ronald Harris, and attempted to kill Brockington. 

Spain, Harris, and Brockington were a group of drug dealers in a

neighborhood close to Lexington Terrace. Moses had been supplied

by Spain since Moses’s release from prison in August 2001. Moses

and Spain eventually had a falling out, so Moses decided to steal

Spain’s stash, with the help of Taylor and Baskerville. 

1Taylor turned eighteen-years old on December 31, 2001. 

2Baskerville was indicted along with the other defendants, but his case

was severed and tried separately. 

UNITED STATES v. FOSTER 5
Moses, Taylor, and Baskerville donned masks, bandanas, and caps,

and went to Brockington’s on the day in question, where they found

Brockington in bed. Brockington lived in the basement of his grandmother’s house, and the front door was usually unlocked. Spain, Harris, Robert "Snoop" McManus, and Samuel Wilder usually came

around every day, woke Brockington, and played video games and

hung out. On the day of the murders, Brockington heard what he

believed were his friends entering the house and coming downstairs.

He awoke to three armed, masked men surrounding his bed. The

assailants demanded drugs, money, and firearms, and kept asking for

Spain. 

Spain eventually arrived as expected, could not get in, and started

shouting at the front door. Moses and Taylor took Brockington

upstairs to open the door. Brockington tried to tell Spain with his eyes

that there was a problem, but Moses grabbed Spain and pulled him

inside. All four went back downstairs, leaving the door unlocked.

Harris then showed up at the house and walked right into the scene

in the basement. 

Thereafter, Moses took Brockington outside to a waiting vehicle

and drove him to the location where the drugs were supposedly

located. Taylor and Baskerville were left guarding Harris and Spain.

When Moses learned that no drugs were accessible at the other location, Moses brought Brockington back to the house on North Calhoun

Street. Moses yelled for someone to open the door, and Taylor, leaving Baskerville with Spain and Harris, went to answer the door. 

Brockington recalled Taylor opening the door and then hearing the

sound of a single shot coming from the basement just as they got

inside the front door. Taylor had his firearm in one hand and pulled

Brockington down the basement steps, by his shirt, with the other

hand. 

Brockington watched as Harris ran to one end of the basement with

Baskerville in pursuit, and Spain ran to the other end of the basement

with Moses and Taylor in pursuit. Brockington was being pulled

along by Taylor. Moses shot Spain at least seven times, which

resulted in Spain’s death. Taylor shot Brockington in the neck and

shoulder and tried to shoot him in the face after he fell. Brockington

6 UNITED STATES v. FOSTER
remained conscious. He watched from the ground as Moses and Taylor ran to the other side of the basement in the direction of Harris and

Baskerville. More shots were fired, resulting in Harris’ death. As the

assailants left the basement, Brockington called out for Spain. Taylor

came back, stood over Brockington, and shot him again in the chest.

Brockington slipped in and out of consciousness. After a while,

Brockington managed to get up and out of the house. He was found

face down on the sidewalk, bleeding profusely from eight gunshot

wounds, by his father, McManus, and Wilder. To the three of them,

and to the first officers on the scene, Brockington stated, "Keon shot

me." (J.A. 647). 

On February 22, 2002, in the 1800 block of Mount Street in Baltimore, Michael Taylor killed McManus, one of the witnesses relevant

to the homicides on September 23, 2001. In fact, McManus had seen

Moses moments before the murder looking for Spain and had heard

Brockington say, "Keon shot me," (J.A. 647), after Brockington made

his way out of his grandmother’s house. 

At about 5:00 p.m. that day, a minister who happened to be driving

through the block saw a lone gunman, wearing a hoodie, chasing

McManus and shooting at him. McManus fell, and the gunman stood

over him and shot him again before running away, leaving McManus

dead with $200 on his person. 

In May 2002, law enforcement officers were investigating the murder of Vance Beasley.3

 In connection with that investigation, the officers executed a search warrant at Taylor’s house and recovered a

letter written to Taylor in early February 2002 by Moses, who was in

jail pending a state trial for the September 23, 2001 murders of Spain

and Harris. The letter contained instructions to Taylor to kill

McManus. In fact, Moses had identified McManus as the one who

could hurt Moses without Taylor’s intervention. The letter said, "His

3According to the government, Taylor participated with Foster and

Gregory Parker in the murder of Beasley, purportedly to avenge the

deaths of Derek Hamlin and Kiari Cromwell, two drug dealers from Lexington Terrace. 

UNITED STATES v. FOSTER 7
statements can hurt me[,] dog. I don’t gotta say it, you know what I

mean?" (J.A. 726). 

Butler testified that, prior to McManus’s murder, Taylor and Butler

had seen McManus on the street on two different occasions, and Taylor discussed killing McManus. On the first occasion, there were too

many witnesses around. On the second occasion, Taylor did not have

his firearm. In a subsequent recorded conversation, Butler confronted

Taylor with McManus’s murder, and Taylor did not deny committing

the crime. 

On April 15, 2002, in the 300 block of North Stricker Street, Baltimore, Taylor and Foster attempted to kidnap Wilder, who had been

standing with McManus after Brockington was shot. As indicated earlier, Wilder was close friends with Brockington, Spain, McManus,

and Harris. 

The state trial against Moses for the Calhoun Street murders began

on April 15, 2002. Taylor and Foster, with Moses’s girlfriend, Linnea

Prout, were present in court watching the testimony. Foster and Taylor had driven to court with Prout, and, on the way home, Foster and

Taylor detoured through Stricker and Saratoga Streets, looking for

someone. After Taylor and Foster dropped off Prout, they went back

to the 300 block of North Stricker Street. Once there, Taylor and Foster jumped out of the vehicle, Taylor grabbed Wilder from behind,

and there was a struggle. Wilder pulled out a gun and shot Foster.

Foster was taken to the hospital. Wilder and the gun were recovered,

and Wilder was charged with attempted murder. Foster’s statement to

the police, as the victim of that shooting, was that he and Taylor were

just trying to bring Wilder to court. In a recorded conversation, Taylor

told Butler that they wanted to sit with Wilder at Moses’s trial to

intimidate Brockington during his testimony. 

On the evening of June 11, 2002, Jay Rhodes, a crack addict and

regular customer at Lexington Terrace, traveled in his car from Glen

Burnie, Maryland with his friend, Joe Morris, to Lexington Terrace

to purchase crack. After purchasing some crack, the pair returned to

Glen Burnie where they smoked it. Desiring more crack, they

returned to Lexington Terrace later that evening. The problem for the

pair was that neither had money. So Rhodes and Morris decided to try

8 UNITED STATES v. FOSTER
to steal some crack from a Lexington Terrace dealer. The plan was

to let a dealer come up to Rhodes’ car at which time Morris would

snatch the crack away from the dealer without paying for it. 

Rhodes and Morris arrived in Lexington Terrace and pulled up to

a dealer, who asked Morris if he was interested in purchasing crack.

After Morris indicated that he was so interested, the dealer instructed

Rhodes to drive around the block and return. Upon returning, Rhodes

stopped his car, where several dealers were now congregating. Once

stopped, Foster entered the car through a rear passenger door. Foster

then asked, "Where the money at?" (J.A. 1025). Rhodes responded

that they did not have any money, adding that they were just trying

to see if any dealers had crack so that they could later return and buy

some. Foster responded, "[n]ah, this is not going down like that,"

(J.A. 1025), and proceeded to put a gun to Rhodes’ head, instructing

Rhodes and Morris to get out of the car. After they complied, Rhodes

attempted to reenter the car, but Foster pointed the gun over the roof

of the car and said, "[n]o, you’re not getting back in my car." (J.A.

1027). Foster, with the help of others, then escorted Rhodes and Morris to an alley and told them to strip. As Morris started to take his

clothes off, he ran down the alley and was able to escape. Rhodes also

tried to escape, but was caught and severely beaten. Law enforcement

later recovered Rhodes’ car on July 5, 2002. 

B

On September 17, 2002, a grand jury sitting in the District of

Maryland returned an indictment, charging Foster, Moses, and Taylor

with conspiracy to possess with the intent to distribute and to distribute fifty grams or more of crack, 21 U.S.C. § 846. Foster was also

charged with two counts of murder by use of a firearm during and in

relation to a drug trafficking crime, 18 U.S.C. § 924(j) (one concerning the murder of Beasley, the other concerning the murder of Cortez

Bailey, a rival drug dealer), one count of witness tampering (concerning the attempt to kidnap Wilder), id. § 1512(b)(3), one count of using

a firearm during and in relation to a crime of violence (namely, the

carjacking), id. § 924(c), and one count of carjacking, id. § 2119.

Moses was also charged with three counts of murder by use of a firearm during and in relation to a drug trafficking crime (concerning the

deaths of Spain, Harris, and McManus), id. § 924(j), and one count

UNITED STATES v. FOSTER 9
of using a firearm during and in relation to a drug trafficking crime

(concerning his possession of a firearm on the day of the Spain and

Harris murders), id. § 924(c). Taylor was also charged with two

counts of causing death with a firearm during and in relation to a drug

trafficking crime, id. § 924(j) (one concerning the murder of Beasley

and the other concerning the death of McManus), and one count of

witness tampering, id. § 1512(b)(3) (concerning the attempt to kidnap

Wilder).4 All of the counts, except for the conspiracy count, charged

the defendants under an aiding and abetting theory as well, id. § 2.

The indictment sought the death penalty against Taylor and Moses.

Superseding indictments were returned, but the charges against the

defendants essentially remained unchanged. 

Prior to trial, the district court dismissed the two § 924(j) counts

against Foster and one of the § 924(j) counts against Taylor (the one

concerning the murder of Beasley). On April 1, 2004, the jury

returned verdicts of guilty on all remaining counts as to each of the

defendants. Following the capital sentencing phase of the trial pertaining to Taylor and Moses, on April 28, 2004, the jury recommended

a sentence of life imprisonment. 

On July 23, 2004, Moses was sentenced to life without the possibility of release on the conspiracy count, concurrent sentences of life

without the possibility of release on the § 924(j) counts, and a consecutive sentence of ten years’ imprisonment on the § 924(c) count. On

that same day, Taylor was sentenced to life without the possibility of

release on the conspiracy count, a concurrent sentence of life without

the possibility of release on the remaining § 924(j) count, and a concurrent sentence of ten years’ imprisonment on the witness tampering

count. On July 26, 2004, Foster was sentenced to life without the possibility of release on the conspiracy count, a concurrent sentence of

ten years’ imprisonment on the witness tampering count, a concurrent

sentence of twenty-five years’ imprisonment on the carjacking count,

and a consecutive sentence of seven years’ imprisonment on the

§ 924(c) count. Each defendant noted a timely appeal. 

4Taylor was not charged with any offenses related to the Spain and

Harris murders because he was a juvenile on the date of those murders.

10 UNITED STATES v. FOSTER
II

The defendants claim that the government, through a statement

made during the course of a lengthy rebuttal argument, constructively

amended the indictment from an indictment charging a large, looseknit conspiracy into one charging a much smaller conspiracy. Specifically, the defendants complain about the following comment: "[Y]ou

are the final deciders of what that conspiracy looks like, entirely up

to you. You can go big. You can go small." (J.A. 1941). Following

an objection, the district court stated, "[w]ell, in order to convict, they

have to find the conspiracy charged in the indictment and that’s, as

she said, it’s their decision." (J.A. 1941). 

A constructive amendment to an indictment occurs when either the

government (usually during its presentation of evidence and/or its

argument), the court (usually through its instructions to the jury), or

both, broadens the possible bases for conviction beyond those presented by the grand jury. United States v. Floresca, 38 F.3d 706, 714

(4th Cir. 1994) (en banc). We have referred to constructive amendments of a federal indictment as fatal variances because "the indictment is altered to change the elements of the offense charged, such

that the defendant is actually convicted of a crime other than that

charged in the indictment." United States v. Randall, 171 F.3d 195,

203 (4th Cir. 1999) (citation and internal quotation marks omitted).

Constructive amendments are error per se and, given the Fifth

Amendment right to be indicted by a grand jury, "must be corrected

on appeal even when not preserved by objection." Floresca, 38 F.3d

at 714. 

When considering a constructive amendment claim, "it is the

broadening [of the bases for a defendant’s conviction] that is

important-nothing more." Id. at 711. As explained in Floresca, "[i]t

matters not," when a constructive amendment has occurred, "whether

the factfinder could have concluded" that the defendant was guilty

even if the amendment had not occurred. Id. The key inquiry is

whether the defendant has been tried on charges other than those

made in the indictment against him. Id.

We find that the defendants were not tried on charges other than

those contained in the indictment. First, the district court’s conspiracy

UNITED STATES v. FOSTER 11
instruction tracked the drug conspiracy charged in the indictment.

Second, the evidence introduced by the government at trial was consistent with the conspiracy alleged in the indictment. Third, the jury

was instructed that the arguments of counsel did not constitute evidence and could not supersede any evidence before the jury. Fourth,

in the very same argument of which the defendants complain, the

government indicated to the jury that it was the jury’s responsibility

to determine if the government proved the conspiracy "charged in the

indictment." (J.A. 1888). In short, we simply cannot conclude that the

defendants were tried on charges not contained in the indictment. Cf.

United States v. Williams, 106 F.3d 1173, 1176 & n.2 (4th Cir. 1997)

(no impermissible amendment when indictment alleged distribution

of methamphetamine and prosecutor’s closing argument indicated

that admission to distribution of marijuana proved guilt, because jury

was instructed that closing argument was not evidence and the district

court instructed the jury that the government had the burden of proving beyond a reasonable doubt that the defendant distributed a mixture and substance containing methamphetamine); United States v.

Russo, 708 F.2d 209, 212-14 (6th Cir. 1983) (no impermissible

amendment of indictment charging extortion by threats of economic

loss when evidence introduced at trial demonstrated extortion by

threats or fear of violence because jury instructions clearly limited

charge to extortion by threat of economic loss). 

III

Taylor and Moses challenge a response made by the district court

to a question from the jury concerning the § 924(j) count that charged

Taylor and Moses with the murder of McManus by use of a firearm

during and in relation to the drug conspiracy.5 The indictment on this

count charged that Taylor and Moses were guilty under 18 U.S.C.

§§ 2 and 924(j). Notably, the indictment did not use language regarding any other persons, known or unknown to the grand jury, who may

have participated in the offense. Moreover, the parties stipulated at

trial that Moses was incarcerated on the day of McManus’s murder.

5Section 924(j) provides that a person, who in the course of violating

18 U.S.C. § 924(c) causes the death of a person through the use of a firearm, shall, if the killing is a murder, be punished by death or by imprisonment for any term of years or for life. 18 U.S.C. § 924(j). 

12 UNITED STATES v. FOSTER
During deliberations, the jury asked the following question concerning this count: "[R]egarding ‘aiding and abetting,’ does the other

person have to be Michael Taylor in order for Keon Moses to be

guilty?" (J.A. 1999). In asking the question, the jury attached a page

from the instructions and circled the portion stating, "Obviously, no

one can be convicted of aiding or abetting the criminal acts of another

if no crime was committed by the other person in the first place."

(J.A. 2000). 

In response to the jury’s question, the district court stated:

Mr. Moses and Mr. Taylor are charged in Count V with killing Mr. McManus. Mr. Moses, who was incarcerated the

day of the murder, is charged on an aiding and abetting theory. You must deliberate and decide whether Mr. Moses has

been proven guilty independent and separately from your

deliberation and decision as to Mr. Taylor and reach a separate verdict as to each defendant. As to Mr. Moses, however,

the other person whom he is charged with aiding and abetting in killing Mr. McManus is Mr. Taylor. To the extent

there is evidence that Mr. Moses aided and abetted anyone

to kill Mr. McManus, and Mr. Moses denied having done

so, there is no evidence that he aided and abetted anyone

other than Mr. Taylor. So, it is up to you [to] decide whether

the [g]overnment has proved beyond a reasonable doubt that

Mr. Moses aided and abetted Mr. Taylor in killing Mr.

McManus. 

(J.A. 1995-96). Taylor and Moses contend that this response was

erroneous because it "(1) was improper for the Judge to state a conclusion of fact and (2) the trial court’s interpretation of aiding and

abetting was mistaken." Appellants’ Br. at 32. 

We review a district court’s decision to respond to a jury’s question, and the form of that response, for an abuse of discretion. United

States v. Smith, 62 F.3d 641, 646 (4th Cir. 1995). "[I]n responding to

a jury’s request for clarification on a charge, the district court’s duty

is simply to respond to the jury’s apparent source of confusion fairly

and accurately without creating prejudice." Id. An error requires

reversal only if it is prejudicial in the context of the record as a whole.

UNITED STATES v. FOSTER 13
United States v. United Med. & Surgical Supply Corp., 989 F.2d

1390, 1406-07 (4th Cir. 1993). 

In this case, the district court acted within its discretion in responding to the jury’s question. At trial, the government sought to prove

that Taylor murdered McManus at Moses’s direction. The government never suggested, through the indictment or the evidence presented at trial, that some third party was responsible for McManus’s

murder or that Moses, while incarcerated, aided and abetted any other

person other than Taylor. The defense countered with a defense of

mistaken identity. Given the manner in which the count was before

the jury, the court correctly told the jury that Moses was being

charged under an aiding and abetting theory, as he could not have

been a principal in McManus’s murder. The court then wisely

informed the jury to consider the guilt of Moses independently from

its consideration of Taylor’s guilt and to reach separate verdicts as to

each defendant. This portion of the court’s response reminded the jury

that it was required to separately determine whether the government

met its burden of proof as to each defendant. Thus, contrary to Taylor

and Moses’s suggestion, the court did not instruct the jury that Taylor

shot McManus. Finally, considering the fact that the only possible

person that Moses could have aided and abetted was Taylor, the court

correctly instructed the jury to decide whether the government proved

beyond a reasonable doubt that Moses aided and abetted Taylor in the

murder of McManus. Thus, the court prudently prevented the jury

from basing a guilty verdict on evidence not before it, i.e., that Moses

aided and abetted some unknown third party’s commission of the

McManus murder. 

IV

The defendants challenge the sufficiency of the evidence to support

several of their convictions. A jury’s verdict must be upheld on appeal

if there is substantial evidence in the record to support it. Glasser v.

United States, 315 U.S. 60, 80 (1942). "[A]n appellate court’s reversal

of a conviction on grounds of insufficient evidence should be confined to cases where the prosecution’s failure is clear." United States

v. Jones, 735 F.2d 785, 791 (4th Cir. 1984) (citation and internal quotation marks omitted). In determining whether the evidence in the

record is substantial, we view the evidence in the light most favorable

14 UNITED STATES v. FOSTER
to the government and inquire whether there is evidence that a reasonable finder of fact could accept as adequate and sufficient to support

a conclusion of a defendant’s guilt beyond a reasonable doubt. United

States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). A defendant challenging the sufficiency of the evidence faces a heavy burden.

United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). In evaluating the sufficiency of the evidence, we do not review the credibility of the witnesses and assume that the jury resolved all

contradictions in the testimony in favor of the government. United

States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998). 

A

Taylor and Moses contend there is insufficient evidence to support

the jury’s verdict on the § 924(j) count related to the murder of

McManus. This argument is without merit. 

Section 924(j) provides that a person, who in the course of violating 18 U.S.C. § 924(c) causes the death of a person through the use

of a firearm, shall, if the killing is a murder, be punished by death or

by imprisonment for any term of years or for life. 18 U.S.C. § 924(j).

The § 924(j) count related to the McManus murder and charged that

Taylor used a firearm in connection with the drug conspiracy count.

Thus, with respect to this count, the government was required to

prove three elements with regard to Taylor: (1) that Taylor committed

the predicate drug conspiracy offense; (2) that Taylor used the firearm

during and in relation to the drug conspiracy offense; and (3) that, in

the course of using that firearm, Taylor caused the murder of

McManus. Cf. United States v. Wallace, 447 F.3d 184, 187 (2d Cir.

2006) (discussing elements of a § 924(j) offense). With regard to

Moses, the government was required to prove that Moses participated

at some stage of the illegal venture with knowledge of the result and

the intent to bring about that result. United States v. Arrington, 719

F.2d 701, 705 (4th Cir. 1983) (discussing elements of aiding and abetting). 

Taylor and Moses contend that there is insufficient evidence in the

record to support the jury’s finding that Taylor murdered McManus.

In our view, the jury was presented with substantial circumstantial

evidence from which to find that Taylor murdered McManus. 

UNITED STATES v. FOSTER 15
First, Butler testified regarding two occasions on which he and

Taylor saw McManus. On the first occasion, Taylor had a gun with

him and wanted to kill McManus. Butler talked him out of it because

of the number of people around. On the second occasion, Taylor did

not have a gun and, thus, felt that he could not kill McManus. 

Second, the circumstances of McManus’s murder suggested an

assassination, as opposed to some other motivation. McManus was

chased on the street by the shooter, with witnesses around. He was

shot in the head, and he had over $200 on his person at the time of

his death. The money was not taken. Therefore, the jury could infer

that the motive of the shooter was not robbery. Third, the jury heard

a taped conversation between Butler and Taylor, in which Butler confronted Taylor with the McManus killing, and Taylor did not deny it.

Fourth, the jury saw the letter from Moses to Taylor instructing

Taylor to kill McManus. After talking about how he was going to

ensure that another witness changed his statement, Moses said,

"S___P. That nigga. His statement can hurt me[,] dog. I don’t gotta

say it, You know what I mean?" (J.A. 2064-65). In our view, this circumstantial evidence, taken in totality and viewed in the light most

favorable to the government, is sufficient to sustain the jury’s finding

that Taylor murdered McManus. 

Moses additionally argues that the evidence is insufficient to demonstrate that he aided and abetted the commission of a § 924(j)

offense. More specifically, he argues that the government failed to

establish that he had actual knowledge that a firearm would be used

to kill McManus. Here, the evidence showed that Moses had

instructed Taylor to kill McManus in order to prevent his testimony

at Moses’s state trial.6 The jury also heard extensive evidence that

members of the conspiracy routinely used firearms to kill rival drug

dealers, for example, in the case of Spain and Harris. In view of this

evidence, we find no merit to Moses’s argument that he had no

knowledge that a firearm would be used to kill McManus. The jury

6As noted earlier, Moses was tried in state court for the murders of

Spain and Harris. 

16 UNITED STATES v. FOSTER
was presented with substantial evidence from which to find that

Moses aided and abetted Taylor’s murder of McManus.7

B

Foster argues that the evidence is insufficient to support the jury’s

determination that he had the mens rea required by the carjacking

statute, 18 U.S.C. § 2119.8 More specifically, he contends that the evidence is inadequate to support the jury’s finding that he intended to

steal Rhodes’ car or, alternatively, that he would have seriously

harmed Rhodes to obtain the car. In response, the government posits

that the evidence is adequate to support the jury’s determination that

Foster intended to steal Rhodes’ car and was prepared to seriously

harm or kill Rhodes had he resisted Foster’s efforts to obtain the car.

7

In support of his argument, Moses relies on United States v. Spinney,

65 F.3d 231, 238-39 (1st Cir. 1995), which vacated the firearms conviction of an accomplice to a bank robbery. Moses’s reliance on Spinney is

misplaced. In Spinney, the firearm was a handgun that was not visible

when the robber entered the bank, and the accomplice charged with aiding and abetting remained outside of the bank. Moreover, the use of the

firearm in Spinney was not contemplated at the planning stages of the

robbery, while here the jury could infer that it was so contemplated in

this case. 

8The federal carjacking statute states: 

Whoever, with the intent to cause death or serious bodily harm[,]

takes a motor vehicle that has been transported, shipped, or

received in interstate or foreign commerce from the person or

presence of another by force and violence or by intimidation, or

attempts to do so, shall— 

(1) be fined under this title or imprisoned not more than 15

years, or both, 

(2) if serious bodily injury [defined in a different statute]

results, be fined under this title or imprisoned not more than

25 years, or both, and 

(3) if death results, be fined under this title, or imprisoned

for any number of years up to life, or both, or sentenced to

death. 

18 U.S.C. § 2119. 

UNITED STATES v. FOSTER 17
To obtain a conviction for carjacking under § 2119, the government

must prove that the defendant "(1) with intent to cause death or serious bodily harm (2) took a motor vehicle (3) that had been transported, shipped or received in interstate or foreign commerce (4) from

the person or presence of another (5) by force and violence or intimidation." United States v. Applewhaite, 195 F.3d 679, 685 (3d Cir.

1999) (citation and internal quotation marks omitted). 

The intent requirement of § 2119 is satisfied when the government

proves that, at the moment the defendant demanded or took control

of the vehicle, the defendant possessed the intent to seriously harm or

kill the driver if necessary to steal the car. Holloway v. United States,

526 U.S. 1, 12 (1999). The government need not prove that the defendant actually intended to cause the harm; it is sufficient that the defendant was conditionally prepared to act if the person failed to

relinquish the vehicle. United States v. Wilson, 198 F.3d 467, 470 (4th

Cir. 1999). The "taking" element of § 2119 is satisfied when defendant takes control of the victim’s vehicle, even if he does not force

him to relinquish it. See, e.g., United States v. Moore, 73 F.3d 666,

669 (6th Cir. 1996). 

The evidence that Foster placed a gun to Rhodes’ head and ordered

both Rhodes and Morris out of the car permitted the jury to conclude

that Foster obtained control of Rhodes’ car. This conclusion is further

buttressed by other evidence, such as Foster’s statement to Rhodes

after Rhodes attempted to reenter the car,"[n]o, you’re not getting

back in my car," (J.A. 1027) (emphasis added), and the evidence that

the car was recovered a month later. All of this evidence allowed the

jury to infer that, at the moment Foster obtained control of Rhodes’

car, he possessed the intent to seriously harm or kill Rhodes if necessary to obtain control of the car. Cf. United States v. Harris, 420 F.3d

467, 474-78 (5th Cir. 2005) (carjacking conviction could not stand

where evidence did not establish that force was the means of stealing

the car); United States v. Lebron-Cepeda, 324 F.3d 52, 57 (1st Cir.

2003) (intent element satisfied where one defendant placed a gun

against the driver’s head and threatened him at the inception of the

carjacking, thereby permitting the inference that the defendant would

have shot the driver had the driver failed to relinquish control of the

car); United States v. Adams, 265 F.3d 420, 424 (6th Cir. 2001) (evidence sufficient to support intent finding where the defendant threat18 UNITED STATES v. FOSTER
ened and then physically touched the carjacking victims with his

gun); Applewhaite, 195 F.3d at 685 (carjacking conviction could not

stand where evidence did not establish that force was used to obtain

the victim’s van); United States v. Lake, 150 F.3d 269, 272 (3d Cir.

1998) (evidence sufficient to support intent finding where defendant

placed a gun near the head of the victim and asked for her keys).

Accordingly, we conclude the evidence in the record is sufficient to

support Foster’s carjacking conviction. 

C

Foster and Taylor also challenge the sufficiency of the evidence to

support their witness tampering convictions under 18 U.S.C.

§ 1512(b)(3).9 At trial, the government presented evidence that, in

April 2002, Foster and Taylor attempted to kidnap Wilder and bring

him to Moses’s state court trial in order to intimidate Wilder’s friend,

Brockington, who was expected to testify against Moses. The government’s evidence further showed that the federal investigation into

drug dealing and the related violence in the Lexington Terrace neighborhood started in the fall of 2001 and that the homicides that were

the subject of the state court trial against Moses were within the scope

of that investigation. 

Our leading case on the reach of § 1512(b)(3) is United States v.

Perry, 335 F.3d 316 (4th Cir. 2003). In that case, the defendant was

charged with violating § 1512(b)(3) after he had been arrested in

Maryland by Montgomery County police officers for various weapons

violations stemming from his possession in his vehicle of, among

9Section 1512(b)(3)provides, in relevant part: 

Whoever knowingly uses intimidation or physical force, threatens, or corruptly persuades another person, or attempts to do so,

or engages in misleading conduct toward another person, with

intent to . . . hinder, delay, or prevent the communication to a

law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense or a violation of conditions of probation, parole, or

release pending judicial proceedings . . . shall be fined under this

title or imprisoned not more than ten years, or both. 

18 U.S.C. § 1512(b)(3). 

UNITED STATES v. FOSTER 19
other things, a loaded handgun with an obliterated serial number.

Perry, 335 F.3d at 318. The defendant told the officers that, if they

would throw away the gun, he would give them certain information.

Id. The defendant lied to the officers about his name and birth date.

Id.

On the appeal following his conviction, the defendant argued that

the government failed to prove that, in lying to the police officers

about his name and birth date, he intended to prevent the communication of information to federal officers relating to the possible commission of a federal offense. Id. at 320. In analyzing this contention, we

explained that the jurisdictional basis for § 1512(b)(3) is "the federal

interest of protecting the integrity of potential federal investigations

by ensuring that transfers of information to federal law enforcement

. . . relating to the possible commission of federal offenses be truthful

and unimpeded." Perry, 335 F.3d at 321 (citation and internal quotation marks omitted). We went on to conclude that § 1512(b)(3)

required the government only to "establish that the defendants had the

intent to influence an investigation that happened to be federal."

Perry, 335 F.3d at 321 (citation and internal quotation marks omitted). We held that the government had met that standard because it

showed that a portion of the potential investigation that the defendant

intended to impede—the "investigation into Perry’s status as a felon

in possession of a firearm"—was federal in nature. Id. Thus, even

though no federal investigation had begun at the time the defendant

committed his obstructive act and even assuming that he was not

aware "that a portion of the firearms investigation would be federal,"

the government’s evidence was sufficient to support his conviction.

Id. at 321-22. In so holding, we rejected the defendant’s contention

that "the Government, in order to obtain a conviction . . . , was

required to show that the MCPD was, at the time of the arrest, cooperating in an ongoing federal investigation or in the investigation of a

federal offense." Id. at 322 n.9. We added that § 1512(b)(3) "does not

require that . . . communication with federal officers be . . . imminent." Perry, 335 F.3d at 322 n.9 (citation and internal quotation

marks omitted). We also rejected the defendant’s suggestion that

§ 1512(b)(3) requires "that federal officials actually receive the misleading information," noting that the statute "applies to one who

engages in misleading conduct with an intent to ‘hinder, delay, or prevent’ communication with federal law enforcement officers. It does

20 UNITED STATES v. FOSTER
not require that the individual have succeeded." Perry, 335 F.3d at

322 n.9. 

Foster and Taylor contend that their witness tampering convictions

under § 1512(b)(3) must be reversed because their convictions rest

"on an inadequate nexus to a federal investigation." Appellants’ Br.

at 47. According to Foster and Taylor, there was no federal nexus

because: "(1) the federal investigation did not exist at the time of the

alleged act; (2) the ‘victim’ was not aware that he was part of a federal investigation; and (3) there was no objective reason to think" that

a federal investigation would be influenced. Appellants’ Br. at 47-48.

Our decision in Perry disposes of these contentions. As recognized

in Perry, a federal investigation was not necessary at the time Foster

and Taylor attempted to bring Wilder to state court to influence

Brockington’s testimony. 335 F.3d at 321-22. In any event, the government’s evidence at trial demonstrated that a federal investigation

into drug dealing and related violence had begun in Lexington Terrace in the fall of 2001. Nor was the government required to prove

that Foster or Taylor were aware of that federal investigation. Id. at

322 n.9. Finally, there simply is no merit to Foster and Taylor’s contention that by their actions they did not attempt to influence a federal

investigation. Based on the evidence before it, the jury was entitled

to conclude that Foster and Taylor attempted to kidnap Wilder with

the intent to hinder or prevent Brockington from further communicating with law enforcement authorities, including federal law enforcement authorities. Cf. United States v. Harris, 498 F.3d 278, 286 (4th

Cir. 2007) (in affirming convictions under 18 U.S.C.

§§ 1512(a)(1)(C) and (a)(2)(C), court noted that a "portion of the

potential investigation that [the defendants] sought to prevent ‘happened to be federal’ because drug trafficking is a federal offense. That

McAbier had communicated previously with local law enforcement

and that those communication[s] had not spawned a federal investigation are red herrings here"). 

V

As part of its charge to the jury on the drug conspiracy count, the

district court instructed the jury to determine, in the event they found

a particular defendant guilty of participating in the charged conspirUNITED STATES v. FOSTER 21
acy, the amount of crack "involved in the conspiracy." (J.A. 1720).

The jury was given three choices in the court’s instructions as to crack

amounts, "50 grams or more, five grams or more, but less than 50

grams, or less than five grams of crack cocaine." (J.A. 1720). Consistent with the court’s instructions, the verdict form asked the jury to

determine the amount of crack "attributable to the conspiracy." (J.A.

2070). As to each defendant, the jury found that the conspiracy

involved fifty or more grams of crack. In sentencing each defendant

to life imprisonment on the drug conspiracy count, the court found

that each defendant was responsible for more than fifty grams of

crack. 

The defendants contend that the district court should have

instructed the jury that, in determining the drug quantity attributable

to each defendant, the jury must determine the quantity that was in

furtherance of the conspiracy and reasonably foreseeable to each

defendant as opposed to the conspiracy as a whole. The defendants

posit that such a failure by the court below runs afoul of the principles

laid out in our decision in United States v. Collins, 415 F.3d 304, 314

(4th Cir. 2005). 

Because the defendants failed to raise this Collins issue in the district court, our review is for plain error. United States v. Olano, 507

U.S. 725, 732 (1993). On plain error review, we will reverse the district court only if we (1) identify an error, (2) which is plain, (3)

which affects substantial rights, and (4) which seriously affects the

fairness, integrity, or public reputation of judicial proceedings. Id. A

defendant found guilty under 21 U.S.C. § 846 is "subject to the same

penalties as those prescribed for the offense, the commission of which

was the object of the . . . conspiracy." 21 U.S.C. § 846. Since a violation of 21 U.S.C. § 841(a)(1) was the object of the conspiracy, the

defendants are subject to the penalties outlined in 21 U.S.C. § 841(b).

Section 841(b) of Title 21 sets forth a graduated penalty scheme

based on the quantity of drugs attributable to the defendant. See id.

§ 841(b) (setting forth statutory minimums and maximums based on

drug amounts). In Collins, we addressed the issue of whether a defendant found guilty of a conspiracy to violate § 841(a) should be sentenced under § 841(b) by considering the amount of drugs distributed

by the entire conspiracy. Collins, 415 F.3d at 312. We answered this

22 UNITED STATES v. FOSTER
question in the negative, holding that such a sentence should be more

individualized, subjecting the defendant to punishment only for distribution of the amount of drugs "attributable to him." Id.

Our decision in Collins relied on previous decisions of the Supreme

Court and this court. For example, we first looked to our prior decision in United States v. Irvin, 2 F.3d 72 (4th Cir. 1993), where we

held that the "most reasonable interpretation of the relevant statutory

provisions requires a sentencing court to assess the quantity of narcotics attributable to each coconspirator by relying on the principles set

forth in Pinkerton [v. United States, 328 U.S. 640 (1946)]." Irvin, 2

F.3d at 77; see also id. at 76 ("[T]he statutes require a district court

to determine the accountability of each coconspirator for each object

offense and the quantity of narcotics involved in each object offense

using the principles of Pinkerton.").10 We went on to explain in Collins that, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000) and

United States v. Promise, 255 F.3d 150 (4th Cir. 2001), the holding

of Irvin was modified "by effectively replacing the words ‘a district

court’ with ‘the jury,’ and requiring proof beyond a reasonable

doubt." Collins, 415 F.3d at 314.11 Thus, under Collins, a district court

10In Pinkerton v. United States, 328 U.S. 640 (1946), the Supreme

Court reviewed the law of conspiracy as it related to the liability of one

conspirator for the substantive acts of another conspirator. The Court

concluded that acts in furtherance of the conspiracy are "attributable to

the others for the purpose of holding them responsible for the substantive

offense." Id. at 647. The Court went on to note that a "different case

would arise if the substantive offense committed by one of the conspirators was not in fact done in furtherance of the conspiracy, did not fall

within the scope of the unlawful project, or was merely a part of the ramifications of the plan which could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement." Id. at 647-48.

Thus, in addition to the requirement that acts be done in furtherance of

the conspiracy, to be attributable to another conspirator, the acts must be

reasonably foreseen as a necessary or natural consequence of the unlawful agreement. 

11In Apprendi, the Supreme Court held that, "[o]ther than the fact of

a prior conviction, any fact that increases the penalty for a crime beyond

the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt." 530 U.S. at 490. Applying the

UNITED STATES v. FOSTER 23
must "instruct a jury to use Pinkerton principles" when determining

the amount of drugs attributable to any one defendant in a drug conspiracy. Id. In other words, in order for the statutory maximums and

mandatory minimums of § 841(b) to apply in a drug conspiracy case,

the jury must determine that the threshold drug amount was reasonably foreseeable to the individual defendant.12

In this case, the jury never determined the individualized quantity

of crack attributable to each defendant for the penalty purposes of

Apprendi holding in Promise, we held that "Apprendi dictates that in

order to authorize the imposition of a sentence exceeding the maximum

allowable without a jury finding of a specific threshold drug quantity, the

specific threshold quantity must be treated as an element of an aggravated drug trafficking offense, i.e., charged in the indictment and proved

to the jury beyond a reasonable doubt." Promise, 255 F.3d at 156-57. 

12We recognize that other courts have held that, in drug conspiracy

cases, the jury is not required to determine the amount of drugs attributable to individual coconspirators; rather, a jury’s finding of drug amounts

for the conspiracy as a whole sets the maximum sentence that each

coconspirator could be given. See, e.g., United States v. Stiger, 413 F.3d

1185, 1192-93 (10th Cir. 2005) (collecting cases). Because the subsequent attribution of drug amounts to an individual coconspirator cannot

increase his maximum sentence, these courts reason that the sentencing

court "may determine the drug quantity attributable to that defendant and

sentence him accordingly (so long as the sentence falls within the statutory maximum made applicable by the jury’s conspiracy-wide drug

quantity determination." Derman v. United States, 298 F.3d 34, 43 (1st

Cir. 2002). In other words, under this approach, the jury sets the maximum sentence (or ceiling) under which each coconspirator’s sentence

must fall, but the court may determine the floor by finding the precise

drug quantity attributable to each coconspirator. United States v. Knight,

342 F.3d 697, 711 (7th Cir. 2003). Consequently, the jury is not required

to make individualized findings as to each coconspirator because "[t]he

sentencing judge’s findings do not, because they cannot, have the effect

of increasing an individual defendant’s exposure beyond the statutory

maximum justified by the jury’s guilty verdict." Id. We express no opinion on the strength of the reasoning of these cases. Collins is the law in

our circuit, and, as a panel of this court, we are bound to follow it. See

United States v. Chong, 285 F.3d 343, 346 (4th Cir. 2002) (holding that

one panel of this court cannot overrule another). 

24 UNITED STATES v. FOSTER
§ 841(b) and simply determined the amount of crack "attributable to

the conspiracy." (J.A. 2070). Because the jury was not properly

instructed under Collins, the defendants’ jury did not properly determine the statutory threshold quantity of crack attributable to each of

them. Accordingly, the first two prongs of Olano (error and plainness)

are satisfied. 

The third inquiry under Olano is whether the plain error affected

the defendant’s substantial rights. According to the Olano Court, the

error "must have affected the outcome of the district court proceedings." 507 U.S. at 734. In this case, the defendants each received life

sentences on the drug conspiracy count. Moses and Taylor also

received life sentences on other counts of conviction; Moses received

three life sentences for his § 924(j) convictions related to the murders

of Spain, Harris, and McManus, and Taylor received a life sentence

for his § 924(j) conviction related to the murder of McManus. Foster

did not receive a life sentence on any other count of conviction;

rather, he was sentenced to thirty-two years on his other counts of

conviction (twenty-five years’ imprisonment on his carjacking conviction plus a seven year consecutive sentence for his § 924(c) conviction, with the ten-year witness tampering sentence to be served

concurrently).

In view of the life sentences Moses and Taylor received on other

counts of conviction, they cannot establish that their substantial rights

were affected by the Collins error. See United States v. Ellis, 326 F.3d

593, 599-600 (4th Cir. 2003) (holding that sentence exceeding statutory maximum by twenty years did not affect substantial rights

because defendant received equal or longer concurrent sentences on

other counts). Because Foster’s life sentence on the drug conspiracy

count exceeds the twenty-year statutory default maximum sentence,

see 21 U.S.C. § 841(b)(1)(C) (setting twenty-year maximum sentence

for crack offenses of less than five grams), his substantial rights were

affected by the Collins error. Cf. Promise, 255 F.3d at 160-61 (holding that a sentence in excess of the authorized statutory maximum to

which a defendant would not otherwise be subject affects his substantial rights). Consequently, in Foster’s case, we must decide whether

to exercise our discretion to notice the Collins error. 

In United States v. Cotton, the Supreme Court held that the government’s error in failing to allege a drug quantity in the indictment did

UNITED STATES v. FOSTER 25
not seriously affect the fairness, integrity, or public reputation of judicial proceedings because the evidence that the conspiracy at issue

involved at least fifty grams of crack, the minimum drug quantity

required to support the enhanced sentence imposed by the district

court, "was overwhelming and essentially uncontroverted." 535 U.S.

625, 633 (2002) (internal quotation marks omitted). As in Cotton, the

evidence evidencing that Foster was responsible for in excess of fifty

grams of crack was overwhelming and essentially uncontroverted.

The government’s evidence overwhelmingly established that he was

a major player in the distribution of crack in Lexington Terrace. He

sold crack, occasionally managed other dealers, and was an enforcer,

willing to employ violence if needed, whether it was carjacking in the

case of Rhodes or witness tampering in the case of attempting to kidnap Wilder. Although Foster was incarcerated during part of the

charged time frame of the conspiracy, the violence employed by him

allowed the lucrative drug trade in Lexington Terrace, where perhaps

over fifty grams of crack were sold on a daily basis, to continue for

a substantial period of time. Moreover, although Foster challenged the

government’s case against him, he primarily focused on whether he

committed the offenses and not on the drug quantities reasonably

foreseeable to him. Unquestionably, if the jury was properly

instructed per Collins, the government’s overwhelming evidence of

the substantial quantities of crack reasonably foreseeable to Foster

would have set the maximum sentence at life imprisonment, 21

U.S.C. § 841(b)(1)(A). Thus, the situation here is analogous to Cotton. Cf. United States v. Smith, 441 F.3d 254, 272-73 (4th Cir. 2006)

(declining to notice Booker error where the jury, having convicted the

defendant of various drug offenses, would have found the specific

drug amounts charged in the indictment by relying on the testimony

proffered by several witnesses). In short, if we disturbed Foster’s sentence on the drug conspiracy count, we would seriously affect the

fairness, integrity, and public reputation of judicial proceedings. 

VI

The defendants raised several additional arguments which they

contend should be resolved in their favor. We have reviewed these

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

reasons stated herein, the judgments of the district court are affirmed.

AFFIRMED

26 UNITED STATES v. FOSTER