                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-5109



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


CALEB J. CARR,

                                              Defendant - Appellant.



                             No. 06-5143



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

           versus


JOHN J. SMALL,

                                              Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of Virginia, at Newport News.    Jerome B. Friedman,
District Judge. (4:06-cr-00006-JBF)


Argued:   December 7, 2007                 Decided:   January 7, 2008
Before DUNCAN, Circuit Judge, HAMILTON, Senior Circuit Judge, and
Catherine C. BLAKE, United States District Judge for the District
of Maryland, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: James Stephen Ellenson, Newport News, Virginia; Stephen A.
Hudgins, Newport News, Virginia, for Appellants. Michael R. Gill,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee.       ON BRIEF: Chuck
Rosenberg, United States Attorney, Alexandria, Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       A jury convicted Caleb Carr and John Small of conspiracy to

violate the Hobbs Act, by obstructing, delaying, and affecting

interstate commerce by robbery, 18 U.S.C. §§ 371, 1951(a).               Both

Carr   and   Small   were   charged   with    other    related     substantive

offenses, namely numerous counts of both Hobbs Act robbery, id. §

1951(a), and using, carrying, and possessing firearms in relation

to the Hobbs Act offenses, id. § 924(c)(1).              Small appeals his

convictions, challenging the district court’s denial of his motion

to suppress, the district court’s denial of his motion to sever his

case from Carr’s case, the sufficiency of the evidence to support

his convictions, and the district court’s instruction on the Hobbs

Act’s interstate commerce element.          Carr appeals his convictions,

joining Small’s jury instruction argument.            We affirm.

       First, Small asserts that the district court erred when it

denied his motion to suppress.            According to Small, the police

officers’ entry on March 15, 2005 into his residence against his

wishes and without a warrant violated his rights as protected by

the Fourth Amendment.       He also claims that the protective pat-down

of his person that followed shortly after the entry and led to the

recovery of a firearm also violated his Fourth Amendment rights.

In reviewing the district court’s denial of a motion to suppress,

we review questions of law de novo and findings of fact and

reasonable inferences drawn from those findings for clear error.


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United States v. Hill, 322 F.3d 301, 304 (4th Cir. 2003).                       Having

carefully reviewed Small’s Fourth Amendment claims, we conclude

that the district court did not err when it denied Small’s motion

to suppress, as the initial entry into the residence was clearly

justified pursuant to the exigent circumstances exception to the

warrant requirement, see United States v. Cephas, 254 F.3d 488,

494-95 (4th Cir. 2001) (setting forth the factors the court must

consider in determining whether exigent circumstances are present),

and    the   pat-down    that    followed     was       warranted   to   protect   the

officers’ safety, see Terry v. Ohio, 392 U.S. 1, 27 (1968) (noting

that    officers   may    stop    and   frisk       a    suspect    if   they   have   a

reasonable suspicion that both criminal activity is afoot and the

suspect is armed and dangerous).

       Next, Small contends that the district court erred when it

denied his motion for severance.             Essentially, Small contends that

severance was warranted because of the spillover effect of the

evidence admitted against Carr.               We review a district court’s

denial of a motion for severance for an abuse of discretion.

United States v. Ford, 88 F.3d 1350, 1361 (4th Cir. 1996).                             A

“party moving for severance must establish that prejudice would

result from a joint trial.”             United States v. Brooks, 957 F.2d

1138, 1145 (4th Cir. 1992).

       We find Small’s argument unpersuasive. “Defendants who have

been charged in the same conspiracy indictment should ordinarily be


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tried together.”     Id.   Because Small was involved in the same

overall conspiracy as Carr, it was proper for Small and Carr to be

tried together.    The mere fact that evidence against one defendant

may be stronger than the evidence against another defendant does

not warrant severance.     Id.   Each of the charges against Small

arose out of the same conspiracy as those of Carr.        While the

government did not allege that Small participated in the robbery in

which Carr was caught red-handed, this fact alone does not justify

severing his trial from Carr’s trial, especially since the district

court in this case cautiously instructed the jury that it was not

to consider the evidence against one defendant when deciding upon

the guilt or innocence of the other defendant. See id. (concluding

that the record failed to indicate that either defendant was

convicted based on spillover evidence because the district court

properly instructed the jury that it was not to consider the

evidence against one defendant when deciding upon the guilt or

innocence of another defendant). Moreover, Small is unable to meet

his burden of showing that he was prejudiced by the joinder.    See

id. (noting that there was abundant evidence, independent of the

evidence against the other codefendants, supporting the convictions

of both defendants that rendered the spillover argument meritless).

     Small also contends that there is insufficient evidence in the

record to support his convictions. A jury’s verdict must be upheld

on appeal if there is substantial evidence in the record to support


                                  5
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 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).

      We have carefully reviewed the record and conclude that the

evidence    in   the   record   is    sufficient     to   support      the   jury’s

verdicts.   See United States v. To, 144 F.3d 737, 747-48 (11th Cir.

1998) (noting that, to prove a Hobbs Act conspiracy, the government

must show three things, namely that “(1) two or more persons agreed

to commit a robbery encompassed within the Hobbs Act; (2) the


                                        6
defendant knew of the conspiratorial goal; and (3) the defendant

voluntarily participated in helping to accomplish the goal”);

United States v. Williams, 342 F.3d 350, 353 (4th Cir. 2003)

(noting that a Hobbs Act violation requires proof of two elements,

namely, (1) the underlying robbery or extortion crime; and (2) an

effect on interstate commerce); United States v. Mitchell, 104 F.3d

649,    652    (4th    Cir.    1997)    (holding       that,     in    a   §    924(c)(1)

prosecution, the government must prove that the defendant used or

carried a firearm and that the defendant did so during and in

relation to a drug trafficking offense or a crime of violence).

       Finally,       Small    and   Carr   challenge      the    district       court’s

instruction on the interstate commerce element of a Hobbs Act

violation.         According to the defendants, the district court’s

instruction allowed the jury to conclude that only a probable

effect on interstate commerce was necessary for conviction, and a

probable effect on interstate commerce is not the standard in this

circuit.      The decision whether to give a jury instruction, and the

content       of   that   instruction,      are       reviewed    for      an   abuse   of

discretion.        United States v. Burgos, 55 F.3d 933, 935 (4th Cir.

1995). “This court reviews jury instructions in their entirety and

as part of the whole trial” to determine “whether the court

adequately instructed the jury on the elements of the offense and

the accused’s defenses.”             United States v. Bostian, 59 F.3d 474,

480    (4th    Cir.    1995)    (citation       and    internal       quotation    marks


                                            7
omitted).      Because we have held that the Hobbs Act’s interstate

commerce    element    is   satisfied   when     the   effect   on    interstate

commerce is “reasonably probable,” United States v. Buffey, 899

F.2d   1402,    1404   (4th   Cir.   1990),     we   reject   the    defendants’

argument.   See also United States v. Bailey, 990 F.2d 119, 125 (4th

Cir.   1993)    (noting     that   interstate    commerce     element    may   be

satisfied even when the impact upon commerce is small, and it may

be shown by proof of probabilities without evidence that any

particular commercial movements were affected). In any event, even

if the district court’s instruction was erroneous, any error here

is harmless beyond a reasonable doubt. See Neder v. United States,

527 U.S. 1, 9-10 (1999) (holding that harmless-error analysis

applies when a district court’s jury instructions omit or misstate

an element of an offense).

       For these reasons, we affirm the district court’s judgments.



                                                                        AFFIRMED




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