United States v. Taylor , 218 F. App'x 249 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4137
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JERMAINE TAYLOR,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, District
Judge. (3:05-cr-00191-REP)
Submitted: February 5, 2007 Decided: February 16, 2007
Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Craig W. Sampson, Richmond, Virginia, for Appellant. Chuck
Rosenberg, United States Attorney, Michael C. Wallace, Sr.,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jermaine Taylor was indicted on two charges of possession of
a controlled substance with intent to distribute. He was tried and
convicted of both offenses in a single jury trial. Although Taylor
concedes that the two offenses were properly joined in the
indictment, he argues that the district court erred in denying his
motion to sever them for trial. Finding no abuse of discretion, we
affirm.
I.
The Government charged Taylor with two violations of 21 U.S.C.
§ 841 (2000): first, that on or about June 28, 2004, he possessed
cocaine hydrochloride with the intent to distribute, and second,
that on or about August 20, 2004, he possessed cocaine base with
the intent to distribute.
On both occasions, Taylor was apprehended while driving a
vehicle registered to someone else. On June 28, Taylor had a small
quantity of cocaine in his pocket; officers discovered a larger
amount of cocaine during an inventory search of the vehicle he was
driving. Taylor volunteered to the arresting officer that he was
a cocaine user. On August 20, officers found cocaine base in the
glove box of the vehicle Taylor drove. On that occasion, Taylor
denied that the cocaine was his, but said he would “take the
weight” so that the passenger in the vehicle with him would not be
charged.
2
The two offenses were joined for trial under Federal Rule of
Criminal Procedure 8(a). Before his trial commenced, Taylor moved
to sever Count One from Count Two, pursuant to Federal Rule of
Criminal Procedure 14(a), arguing that he would be prejudiced if
tried for both offenses at the same trial.* The district court
denied Taylor’s motion, relying, in part, upon a finding that
evidence of each charged offense would be admissible in a trial on
the other under Federal Rule of Evidence 404(b). Therefore, the
district court reasoned, Taylor would not be additionally
prejudiced by having the two offenses jointly tried.
A jury tried and convicted him of both crimes. The court
sentenced him to 162 months on each count, to be served
concurrently. Taylor timely appealed, arguing that the district
court’s refusal to sever the offenses for trial resulted in
prejudice to Taylor.
II.
Under Rule 8(a), two offenses may properly be joined in an
indictment “if the offenses charged -- whether felonies or
misdemeanors or both -- are of the same or similar character . . .”
Fed. R. Crim. P. 8(a). Once joined, however, offenses may be
severed for trial if joinder “appears to prejudice a defendant or
*
Taylor did not then, nor does he now, argue that the offenses
were improperly joined in the same indictment. See Fed. R. Crim.
P. 8(a).
3
the government.” Fed. R. Crim. P. 14(a). A ruling on a motion to
sever is “committed to the discretion of the district court.”
United States v. Foutz, 540 F.2d 733, 736 (4th Cir. 1976).
“A defendant making a motion for severance pursuant to Rule 14
has the burden of demonstrating a strong showing of prejudice.”
United States v. Goldman, 750 F.2d 1221, 1225 (4th Cir. 1984). In
considering a severance motion, the trial court balances any
possible prejudice to the accused “against the interests of the
efficient administration of justice.” United States v. Cole, 857
F.2d 971, 974 (4th Cir. 1988). In particular, when offenses are
joined based upon their “same or similar character,” the trial
court should consider three possible sources of prejudice:
(1) the jury may confuse and cumulate the evidence, and
convict the defendant of one or both crimes when it would
not convict him of either if it could keep the evidence
properly segregated; (2) the defendant may be confounded
in presenting defenses, as where he desires to assert his
privilege against self-incrimination with respect to one
crime but not the other; or (3) the jury may conclude
that the defendant is guilty of one crime and then find
him guilty of the other because of his criminal
disposition.
Foutz, 540 F.2d at 736. The fact that joinder may make for a more
difficult defense or that a separate trial might increase the
defendant’s chance of acquittal are not sufficient grounds for
severance. Goldman, 750 F.2d at 1225. At the same time, if
“evidence of the joined crimes ‘would be mutually admissible for
legitimate purposes in separate trials for each offense,’” the
possibility of prejudice to the defendant from a joint trial “is
4
greatly diminished.” Cole, 857 F.2d at 974 (quoting United States
v. Jamar, 561 F.2d 1103, 1106 (4th Cir. 1977)).
On appeal, we review a district court’s denial of a motion to
sever for abuse of discretion. United States v. Mackins, 315 F.3d
399, 412 (4th Cir. 2003). An abuse of discretion will only be
found upon a showing of “clear abuse affecting substantial rights
of the accused.” Jamar, 561 F.2d at 1106. We have previously
noted that it “will be rare” that offenses properly joined under
Rule 8(a) will nevertheless require severance under Rule 14(a).
United States v. Cardwell, 433 F.3d 378, 387 (4th Cir. 2005). This
is not one of those “rare” cases.
In the present case, the district court properly determined
that evidence of each charged drug offense would have been
admissible in a trial on the other under Federal Rule of Evidence
404(b). The similarity of the conduct alleged -- Taylor’s alleged
modus operandi -- and the closeness in time of the two offenses
would tend to show Taylor’s knowledge and intent, as well as an
absence of mistake or accident; both are permissible purposes for
admission of evidence under Rule 404(b). See, e.g., United States
v. Tanner, 61 F.3d 231, 237 (4th Cir. 1995) (holding prior acts of
illegal drug distribution admissible to show modus operandi,
knowledge, and absence of mistake). Additionally, when the joined
offenses allege similar criminal conduct undertaken during a short
time frame, as here, this supports a court’s decision not to sever
5
properly joined offenses. See United States v. Acker, 52 F.3d 509,
514 (4th Cir. 1995) (“In cases where the offenses are identical, or
strikingly similar in the method of operation and occur over a
short period of time, it is not an abuse of discretion to deny
severance.”).
Furthermore, even were we to believe that some prejudice may
have accrued to Taylor from a joint trial on these offenses, the
district court specifically instructed the jury, at the close of
all of the evidence, that: “[e]ach alleged offense and any evidence
that relates to that offense should be considered separately by
you. And the fact that you find the defendant guilty or not guilty
of one of the offenses charged should not control your verdict as
to any other offense charged against him.” This instruction
provides further evidence that any potential prejudice from a joint
trial on the two offenses did not materialize into actuality. See
Cardwell, 433 F.3d at 388.
To succeed on appeal, Taylor must show that the court’s
refusal to sever was a “clear abuse affecting [his] substantial
rights.” Jamar, 561 F.2d at 1106. In light of the district
court’s thorough consideration of the possible sources of prejudice
to Taylor from a joint trial, and the limiting instruction given,
we find no such abuse of discretion.
6
III.
For the foregoing reasons, we affirm. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before us and argument would not aid in
the decisional process.
AFFIRMED
7