                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        MAR 10 1998
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                    No. 97-6085
                                                   (D.C. No. 96-CR-93)
 SHARON DENISE SHAW,                                  (W.D. Okla.)

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before PORFILIO, BRORBY, and MURPHY, Circuit Judges.


Edward J. Kumiega, Assistant United States Attorney (Patrick M. Ryan, United
States Attorney; Randal A. Sengel, Assistant United States Attorney, with him on
the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Frank R. Courbois (Fred L. Staggs with him on the brief), Oklahoma City,
Oklahoma, for Defendant-Appellant.



      Ms. Sharon Shaw appeals her jury conviction for possession of cocaine

with intent to distribute in violation of 21 U.S.C. § 841(a)(1). She claims she was


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
denied a fair trial by misjoinder of her charge with her codefendants, and the trial

court abused its discretion by denying her motions for severance. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.



      On May 13, 1996, Ms. Shaw rented a Lincoln Towne Car in Tulsa,

Oklahoma. She then drove the car to her friend Ron Burnett 's house in

Oklahoma City. Two days later, Mr. Burnett's cousin, Mr. Wyoma Johnson,

borrowed the Lincoln and drove it to Houston, Texas. In Houston, five kilograms

of cocaine was placed in the spare tire located in the Lincoln's trunk. As Mr.

Johnson drove back to Oklahoma City on May 15, 1996, he was stopped for

speeding. After Mr. Johnson failed to produce a rental contract, police seized the

Lincoln on behalf of the rental car company. During the search of the vehicle, an

officer discovered the cocaine and arrested Mr. Johnson.



      Mr. Johnson cooperated with law enforcement authorities by driving the

Lincoln back to Mr. Burnett's house with one kilogram of cocaine in the spare

tire. Meanwhile, a team of officers set up a videotaped surveillance of Mr.

Burnett's house. The videotape shows shortly after Mr. Johnson entered the

house, Mr. Burnett and Mr. Johnson walked outside. Mr. Burnett opened the

trunk, removed the spare tire and carried it into the house. Ms. Shaw was in the


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house at this time. The videotape then depicts Ms. Shaw walking out of the

house, opening the driver's door of the Lincoln, and releasing the trunk. Mr.

Burnett then wheeled a tire to the rear of the car and placed it in the trunk. Ms.

Shaw then drove away.



      Not far from Mr. Burnett's house, a patrol car stopped Ms. Shaw. During a

pat down search of Ms. Shaw, an officer discovered $500 in Ms. Shaw's bra. In

addition, officers found one kilogram of cocaine in one of two spare tires in the

trunk. Ms. Shaw was then arrested.



      Meanwhile, police arrested Mr. Burnett and Mr. Johnson at Mr. Burnett's

house. Inside the house, officers seized drug paraphernalia. Officers also seized

firearms and an ice chest containing glassware, zip-lock baggies, crack cocaine

and marijuana from a car in Mr. Burnett's garage.



      Ms. Shaw was charged in a joint indictment with Mr. Johnson and Mr.

Burnett. Count One of the indictment charged Mr. Johnson and Mr. Burnett with

conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C.

§§ 841(a)(1) and 846. Count Two charged Ms. Shaw and Mr. Burnett with

knowingly and intentionally possessing cocaine with intent to distribute in


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violation of 21 U.S.C. § 841(a)(1). Count Three charged Mr. Johnson with

interstate travel to facilitate the cocaine enterprise in violation of 21 U.S.C.

§ 812. Mr. Johnson pleaded guilty to Count Three and testified for the

government.



      Ms. Shaw and her codefendant, Mr. Burnett, were tried jointly before a

jury. The original trial date of July 8, 1996 was continued twice on Ms. Shaw's

and Mr. Burnett's motions. On August 19, 1996, Ms. Shaw filed a motion for

severance claiming she would be prejudiced by joinder with Mr. Burnett. On

August 20, 1996, Ms. Shaw filed a second motion for severance claiming not only

prejudice by joinder as in her original motion, but also that Mr. Burnett would

exculpate her if the trials were severed. On the first day of trial, August 21, 1996,

the district court heard arguments on Ms. Shaw's motions and denied her requests

for severance. Mr. Burnett did not testify. However, Mr. Johnson testified Ms.

Shaw "was never present where there [were] any drugs." The jury found Ms.

Shaw guilty on Count Two and she was sentenced to sixty months imprisonment.



      On appeal, Ms. Shaw claims joinder of her possession charge with Mr.

Burnett's and Mr. Johnson's conspiracy charge was improper. She also contends

she was denied a fair trial by the district court's denial of her motions for


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severance. In particular, she alleges the district court erred by denying her the

opportunity to examine Mr. Burnett, who would have testified in a separate trial

that Ms. Shaw had no knowledge of the drugs in the spare tire or his cocaine

conspiracy. She also claims the trial court abused its discretion in admitting

evidence against Mr. Burnett that was highly prejudicial to her and would not

have been admissible against her in a separate trial.



Misjoinder

      We first address Ms. Shaw's contention the court misjoined her possession

charge with Mr. Burnett's and Mr. Johnson's conspiracy charges under Fed. R.

Crim. P. 8(b). We review de novo questions of misjoinder under Rule 8. United

States v. Janus Indus., 48 F.3d 1548, 1557 (10th Cir.), cert. denied, 116 S. Ct. 87

(1995).



      Fed. R. Crim. P. 8(b) permits joinder of two or more defendants in the same

indictment if it is alleged "they ... participated in the same act or transaction or in

the same series of acts or transactions constituting an offense or offenses." In

addition, "[s]uch defendants may be charged in one or more counts together or

separately and all of the defendants need not be charged in each count." Fed. R.

Crim. P. 8(b). In the federal system, "[t]here is a preference ... for joint trials of


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defendants who are indicted together." Zafiro v. United States, 506 U.S. 534, 537

(1993). We construe Rule 8 broadly "to allow liberal joinder to enhance the

efficiency of the judicial system." United States v. Morales, 108 F.3d 1213, 1219

(10th Cir. 1997).



      Ms. Shaw was indicted for possession of the same cocaine Mr. Burnett

allegedly possessed, and Mr. Burnett and Mr. Johnson allegedly conspired to sell.

All codefendants were arrested on the same day for similar drug offenses arising

out of overlapping facts. See Janus Indus., 48 F.3d at 1557 (characterizing two

different counts in violation of the Drug Abuse Prevention and Control Act of

Title 21 as offenses of "similar character"). Although Ms. Shaw is not included

in the conspiracy count, Fed. R. Crim. P. 8(b) explicitly states a defendant need

not be charged with every count in the indictment. See also United States v.

Green, 115 F.3d 1479, 1487 (10th Cir. 1997), petitions for cert. filed, (U.S. Sep.

2, 1997 & Sep. 14, 1997) (Nos. 97-5829 & 97-6029) (upholding a joint trial

concerning robbery and attempted robbery counts against three defendants not

charged in every count). Hence, we conclude the joinder of the defendants was

proper.



Motions for Severance


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      Ms. Shaw also contends the district court abused its discretion in denying

her motions for severance based on (1) her need to call Mr. Burnett, her

codefendant, to give exculpatory testimony, and (2) the prejudicial spillover effect

of disparaging evidence introduced against Mr. Burnett. We recognize the

decision to grant or deny severance is within the trial court's discretion. Morales,

108 F.3d at 1219. We will not disturb the district court's decision absent a clear

showing of an abuse of discretion. Id. To show an abuse of discretion, "the

defendant must show actual prejudice resulted from the denial." Id.



      Under Fed. R. Crim. P. 14, a district court may grant a severance of

defendants' trials if it appears the joinder will result in prejudice to a defendant.

In ruling on a motion for severance, the district court must "'weigh the prejudice

resulting from a joint trial of codefendants against the expense and inconvenience

of separate trials.'" Morales, 108 F.3d at 1219 (quoting United States v. Cardall,

885 F.2d 656, 668 (10th Cir. 1989) (internal quotations omitted)). A mere

allegation the defendant would have a better chance of acquittal in a separate

trial, or a complaint that the "spillover effect" from evidence against a

codefendant prejudiced the moving party is insufficient to warrant severance. Id.

A district court should grant severance "only if there is a serious risk that a joint

trial would compromise a specific trial right of one of the defendants, or prevent


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the jury from making a reliable judgment about guilt or innocence." Zafiro, 506

U.S. at 539.



      Because one of Ms. Shaw's reasons for severance was her need for Mr.

Burnett's testimony, in order to prove prejudice, Ms. Shaw must also show she

would have called Mr. Burnett at a separate trial, Mr. Burnett would in fact have

testified, and his testimony would have been favorable to her. United States v.

Dickey, 736 F.2d 571, 590 (10th Cir. 1984), cert. denied, 469 U.S. 1188 (1985).

Furthermore, the following factors are relevant to the district court's decision to

sever based on a need for a codefendant's testimony: (1) the significance of the

testimony in relation to the defendant's theory of defense; (2) the exculpatory

nature and effect of such testimony; (3) the likelihood that the codefendant's

testimony would be impeached; (4) the extent of prejudice caused by the absence

of the testimony; and (5) the timeliness of the motion. United States v.

McConnell, 749 F.2d 1441, 1445 (10th Cir. 1984).



      Ms. Shaw supported her second motion by alleging Mr. Burnett planned to

exercise his Fifth Amendment right to remain silent, but was able to testify and

exonerate Ms. Shaw if the trials were severed and Ms. Shaw was tried after Mr.

Burnett. She stated Mr. Burnett would testify Ms. Shaw was not aware of the


                                          -8-
drugs in the Lincoln.



      The court denied her motion on the basis the judicial expedience of a joint

trial outweighed any prejudicial effect to Ms. Shaw. In considering her motion,

the court further found it untimely since it was filed the eve of Ms. Shaw's trial.

The court also was concerned Mr. Burnett might exercise his Fifth Amendment

privilege throughout his potential appeal thereby delaying Ms. Shaw's trial

further. In addition, as an offset to any potential prejudice against Ms. Shaw, the

court recognized Mr. Johnson, a less impeachable witness than Mr. Burnett, 1

intended to testify Ms. Shaw was never present where there were drugs. We

agree these circumstances weigh against severance. Thus, we conclude the

district court did not abuse its discretion in denying Ms. Shaw's motion.



      Finally, Ms. Shaw contends the district court abused its discretion in

denying her motions for severance because she was prejudiced by disparaging

evidence admitted against Mr. Burnett which could not have been introduced

against Ms. Shaw in a separate trial. In particular, she refers to firearms


      1
         Mr. Burnett had seven prior felony convictions and a prior relationship
with Ms. Shaw. Ms. Shaw testified she loved him and they had lived together.
(Id. at 137.) In comparison, Mr. Johnson had no prior convictions, had served in
the military twenty years, and had no prior relationship with Ms. Shaw.


                                          -9-
"typically found" in drug arrests introduced as evidence against Mr. Burnett, and

of which she had no knowledge. She also claims she was prejudiced by Mr.

Johnson's testimony that he had made previous trips for Mr. Burnett, and of which

Ms. Shaw had no knowledge. Therefore, Ms. Shaw contends she suffered a

"spillover" effect from evidence admitted against Mr. Burnett but not relevant to

her case.



      As stated above, to be successful in her claim, Ms. Shaw must show actual

prejudice. Morales, 108 F.3d at 1219. Ms. Shaw failed to make such a showing.

First, the firearms were not introduced against Ms. Shaw, or linked to the Lincoln

or Ms. Shaw's cocaine possession. Second, Ms. Shaw testified she was unaware

of the weapons and no further examination of Ms. Shaw disclosed any evidence to

the contrary. The government specifically tied the firearms to Mr. Burnett and his

role in the charged conspiracy. Third, we note Ms. Shaw does not claim the court

refused to consider giving a limiting instruction as to the relevance of such

evidence. This case was uncomplicated, involving two counts and two

defendants. Cf. Zafiro, 506 U.S. at 539 (noting complex cases with many

defendants result in increased risk of prejudice). Consequently, we fail to find

any prejudicial effect outweighing the economies of a joint trial.




                                         -10-
      We also fail to see how Mr. Johnson's testimony concerning his prior trips

to Houston for Mr. Burnett could have prejudiced Ms. Shaw to the extent she was

denied a fair trial. Any prejudice resulting from Mr. Johnson's testimony to Ms.

Shaw also is outweighed by the expediency of a joint trial, considering the fact

that Mr. Johnson specifically testified Ms. Shaw was not present where there were

any drugs. Furthermore, the record shows the government used Mr. Johnson's

testimony against Mr. Burnett to show a conspiracy, not Ms. Shaw. Moreover,

there was independent evidence in the record relevant to Ms. Shaw's possession

charge. For example, Ms. Shaw was at Mr. Burnett's house when Mr. Johnson

delivered the kilogram of cocaine in the spare tire. Police subsequently found

drug paraphernalia on the kitchen counter in Mr. Burnett's house. Ms. Shaw

opened the trunk for Mr. Burnett who placed the spare tire containing cocaine in

the trunk. After police stopped Ms. Shaw, they found one kilogram of cocaine in

the trunk of her rental car and $500 in her bra. The district court did not abuse its

discretion by denying Ms. Shaw's severance motions under these circumstances.



      Accordingly, we AFFIRM.

                                        Entered for the Court


                                        WADE BRORBY
                                        United States Circuit Judge


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