                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           OCT 29 1999
                                    TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,                     No. 98-1464
           v.                                            (D. Colorado)
 ROBERT JAY BERNHARDT,                              (D.C. No. 96-CR-203-S)

                Defendant - Appellant.


                              ORDER AND JUDGMENT          *




Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.




       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




       This order and judgment is not binding precedent, except under the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.
      Following a jury trial, Robert Jay Bernhardt was convicted of conspiracy to

possess with intent to distribute methamphetamine, in violation of 21 U.S.C.

§§ 841(a)(1) & (b)(1)(A), 846 (count I); possession and the attempted possession

with intent to distribute a controlled substance, and aiding and abetting, in

violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A), 18 U.S.C. § 2 (counts II and IX);

and using or carrying a firearm in connection with a drug trafficking offense, in

violation of 21 U.S.C. § 841(a)(1), 18 U.S.C. § 924(c) (counts III and X). He

now appeals from his conviction and sentence, contending that the district court

erred by (1) denying his motion to sever his trial from the trial of his codefendant;

(2) finding the evidence sufficient to establish a single conspiracy as charged;

(3) admitting statements of coconspirators; and (4) imposing an improper

sentence. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm.



                                  BACKGROUND

      In March 1996, an informant advised federal agents that Bernhardt was

moving methamphetamine from California to Colorado in exchange for weapons,

explosives and money. R. Vol. 8 at 55-56.         1
                                                      The agents set up an undercover

operation to monitor the informant’s negotiations and transactions with Bernhardt.



      1
        All record designations refer to the common record which was previously
filed in the companion case. See note 2 infra.

                                            -2-
Id. at 69. After several phone conversations between the informant and

Bernhardt, on April 9, 1996, the informant and an undercover agent met

Bernhardt’s codefendant, James Eads, in a hotel room in California. R. Vol. 10 at

368, 370-71. The informant sold approximately one pound of methamphetamine

to Eads, who paid with a combination of firearms, ammunition, and an explosive

device, which he identified as coming from Bernhardt, and cash which he had

obtained from another source.   See R. Vol. 8 at 75-79, 90-96; R. Vol. 10 at 371-

72; see also Appellant’s App., Tab 1 at 22. During the exchange, the agent asked

how to operate the explosive device, and Eads responded that the agent would

have to speak to Bernhardt. R. Vol. 8 at 90-91.

      In the weeks following the transaction with Eads, the agent and the

informant made several phone calls to Bernhardt. R. Vol. 9 at 111, 116, 118, 122,

124. In those conversations the agent asked how to operate the explosive device

which Eads had delivered,   id. at 112, and both the agent and the informant

arranged for a further exchange of weapons for methamphetamine. Around this

same time, Bernhardt moved in with another acquaintance, Patrick, who also

became involved in the arrangements. R. Vol. 9 at 128, 148; R. Vol. 10 at 375,

427-30.

      Finally, on May 20, 1999, the agent met Patrick in Castle Rock, Colorado.

R. Vol. 9 at 168. Patrick brought firearms and explosives to the meeting, which


                                         -3-
he gave to the agent in exchange for two pounds of methamphetamine. After the

agent received the firearms, Patrick was arrested. Eventually, Bernhardt, Eads,

Patrick, and other alleged coconspirators were indicted. Three of the alleged

coconspirators, including Patrick, pleaded guilty and became government

witnesses. Two, including Eads, were tried with Bernhardt. The jury convicted

both Bernhardt and Eads,   2
                               but it acquitted the third defendant.



                                        DISCUSSION

       A. Denial of Motions for Severance          . As his first claim on appeal,

Bernhardt contends that the district court erred by denying his motions to be tried

separately from his codefendants. We review the district court’s denial of

severance for an abuse of discretion.      United States v. Eads , No. 98-1331, ___

F.3d ___, 1999 WL 626094, at *1 (10th Cir. Aug 18, 1999). Generally, “‘a joint

trial of the defendants who are charged with a single conspiracy in the same

indictment is favored where proof of the charge is predicated upon the same

evidence and alleged acts.’”      United States v. Flanagan , 34 F.3d 949, 952 (10th

Cir. 1994) (quoting   United States v. Hack , 782 F.2d 862, 871 (10th Cir. 1986)).



      Following his conviction on three counts, Eads also brought an appeal, in
       2

which he made claims of error that are similar to some of the claims that
Bernhardt now raises. We have recently affirmed Eads’ conviction and sentence.
See United States v. Eads, No. 98-1331, --- F.3d ----, 1999 WL 626094 (10th Cir.
Aug 18, 1999).

                                             -4-
However, pursuant to Fed. R. Crim. P. 14, the district court may grant a severance

of defendants, if joinder appears to prejudice a defendant.       See id. In considering

a motion for severance, the district court must weigh the prejudice resulting from

a joint trial of co-defendants against the expense and inconvenience of separate

trials. See Eads , ___ F.3d at ___, 1999 WL 626094, at *1. When the risk of

prejudice is not high, severance may not be necessary, especially if less drastic

measures, such as limiting instructions, will suffice to cure any prejudice.     See

Zafiro v. United States , 506 U.S. 534, 539 (1993). In any event, in order to

establish that the court abused its discretion by denying a severance motion, “‘the

defendant must show actual prejudice resulted from the denial.’”         Eads , ___ F.3d

at ___, 1999 WL 626094, at *1      (quoting United States v. Rodriguez-Aguirre     , 108

F.3d 1228, 1233 (10th Cir. 1997).

       In this case, the district court gave limiting instructions. However,

Bernhardt contends the instructions were insufficient in light of the cumulative

presentation of evidence against his codefendants. Thus, he argues that the

government confused the evidence among the defendants, resulting in actual

prejudice when the government attempted to introduce previously excluded

evidence. Moreover, he cites the acquitted codefendant’s request for leave to

explore the same excluded evidence as showing the antagonism and conflict




                                             -5-
between the defendants. Finally, he complains generally that the “spill-over”

effect of other presentations prejudiced him.

      Having reviewed the record, we conclude that, although there was some

risk of prejudice to Bernhardt, the court’s limiting instructions sufficiently

addressed and cured any potential prejudice.        See Eads , ___ F. 3d at ___, 1999

WL 626094, at *2 (noting the presumption that a jury follows such instructions).

Accordingly, Bernhardt has not shown actual prejudice, and we find no abuse of

discretion in the district court’s denial of his motion to sever.



      B. Sufficiency of the Evidence–Conspiracy             . As his second claim of

error, Bernhardt contends the evidence at trial was insufficient to prove the single

conspiracy charged under the indictment.       3
                                                   “We review this challenge to the

sufficiency of the evidence de novo, ‘viewing the circumstantial and direct

evidence along with the reasonable inferences therefrom in the light most

favorable to the government, to determine whether a reasonable jury could find

[Bernhardt] guilty of a single conspiracy beyond a reasonable doubt.’”         Eads ,



      3
       Bernhardt also claims his conviction must be reversed because the variance
between the single conspiracy charged under the indictment and the proof at trial
(which, according to his argument, suggested multiple conspiracies) affected his
substantial rights. Since we conclude that the evidence was sufficient to establish
the single conspiracy charged, see discussion infra, we do not address Bernhardt’s
variance claim.

                                           -6-
1999 WL 626094, at *2, ___ F.3d at ___ (quoting     United States v. Vaziri , 164

F.3d 556, 565 (10th Cir.1999)). “‘Conspiracy requires proof of (1) an agreement

with another person to break the law; (2) knowledge of the essential objectives of

the conspiracy; (3) knowing and voluntary involvement in the conspiracy; and

(4) interdependence among the alleged conspirators.’”    Id. However, each

conspirator need not know either everything about the conspiracy or everyone else

in the conspiracy, so long as he is generally aware of the scope and objective of

the enterprise.   See Eads , 1999 WL 626094, at *2, ___ F.3d at ___.

       Count I of the Third Superceding Indictment charged Bernhardt and others

with conspiring, from March 15, 1996, through June 10, 1996, to possess with

intent to distribute methamphetamine and cocaine. Essentially Bernhardt asserts

there is insufficient evidence to prove he was involved in the charged conspiracy,

since he was physically absent when the two exchanges occurred. We disagree.

The record reveals numerous conversations and arrangements between the

informant, the agent, and Bernhardt, which resulted in Bernhardt’s associates

appearing for the actual exchanges.

       As we noted in Eads , “[t]here was considerable evidence of an agreement

and cooperation between Mr. Eads and Mr. Bernhardt.”      Eads , 1999 WL 626094,

at *2, ___F.3d at ___. Likewise, there was considerable evidence of an

agreement and cooperation between Bernhardt and Patrick. The fact that a


                                          -7-
number of separate transactions may have been involved in the case does not

necessarily establish the existence of a number of separate conspiracies, so long

as the activities were aimed at “a common, illicit goal.”   See United States v.

Ailsworth , 138 F.3d 843, 851 (10th Cir. 1998) (internal quotations omitted). In

this case, there was considerable evidence to support a finding Bernhardt was the

core conspirator, who knowingly managed each phase of a larger conspiracy.

Thus, a reasonable jury could have found that Bernhardt directed Eads and Patrick

in order to accomplish the common conspiracy to possess and effect the

distribution of drugs, and that all three, with knowledge of the larger venture,

knowingly agreed to cooperate in furtherance of the conspiracy’s objectives.



       C. Hearsay Ruling . In a related argument, Bernhardt claims that the

district court erred by admitting his alleged coconspirators’ hearsay statements

under Fed. R. Evid. 801(d)(2)(E), because the evidence failed to establish a single

conspiracy. We review the district court’s admission of hearsay statements of a

coconspirator for abuse of discretion.     See United States v. Parra , 2 F.3d 1058,

1068 (10th Cir. 1993). Pursuant to Fed. R. Evid. 801(d)(2)(E), the court may

properly admit coconspirator statements, if it finds “‘by a preponderance of the

evidence that: 1) a conspiracy existed, 2) the declarant and the defendant against

whom the declarations are offered were members of the conspiracy, and 3) the


                                             -8-
statements were made in the course of and in furtherance of the conspiracy.’”

Parra , 2 F.3d at 1069 (quoting   United States v. Mobile Materials, Inc.   , 881 F.2d

866, 869 (10th Cir. 1989).

       We have already found the evidence sufficient to support the jury’s finding

that Bernhardt participated in the single conspiracy as charged. Accordingly,

Bernhardt’s argument regarding the statements of coconspirators, which is based

upon his asserted deficiencies in the proof of a single conspiracy, must also fail.

The district court did not abuse its discretion in admitting Rule 801(d)(2)(E)

evidence.



       D. Sentencing . As his final claim of error, Bernhardt asserts that the

district court improperly enhanced his sentence under 18 U.S.C. § 924(c)(1). The

district court’s application of 18 U.S.C. § 924(c) is a question of law which we

review de novo.    See United States v. Deal , 954 F.2d 262, 262-63 (5th Cir. 1992),

aff’d , 508 U.S. 129 (1993).

       In this case, Bernhardt was convicted of a conspiracy to distribute drugs

under count I of the indictment. That count covered the time period between

March 15, 1996, and June 10, 1996. Bernhardt was also convicted on two counts

covering the separate underlying drug law violations. That is, he was convicted

on count II, which concerned the transaction in California on April 9, 1996, and


                                            -9-
he was convicted on count IX, which concerned the transaction in Colorado on

May 20, 1996. He was additionally charged with and convicted on two counts of

§ 924(c)(1) violations. Count III covered the use of a firearm in connection with

the California transaction, and Count X covered the use of a firearm in connection

with the Colorado transaction. Both counts involved machine guns or explosive

devices. 4

       On appeal, Bernhardt emphasizes his conspiracy conviction, arguing that a

defendant convicted on only one predicate offense may be charged with only one

violation of 18 U.S.C. § 924(c)(1). Appellant’s Br. at 13. In support he cites

United States v. Callwood , 66 F.3d 1110, 1114 (10th Cir. 1995). Bernhardt’s

reliance on Callwood is misplaced.      Callwood simply notes that double jeopardy

concerns will prevent consecutive sentences for multiple 924(c)(1) counts when

the charges underlying the 924(c)(1) counts constitute only a single offense.   See

id. In this case, there is no issue of double jeopardy, nor does Bernhardt make

such an argument.



       4
        Pursuant to § 924(c)(1), any person “who, during and in relation to any . . .
drug trafficking crime . . . , uses or carries a firearm,” shall be sentenced to a
consecutive, separate sentence, in addition to the punishment for the drug
trafficking crime. If the firearm is a machine gun or a destructive device, the
person shall be sentenced to an additional term of imprisonment of not less than
30 years, and, in the case of a second or subsequent conviction involving a
machine gun or destructive device, the sentence shall be imprisonment for life.
18 U.S.C. § 924(c)(1).

                                           -10-
      As the Supreme Court has explained, if a defendant is charged with and

convicted of separate offenses to which § 924(c) applies, the separate convictions

on the associated § 924(c) counts can be used to determine previous and

subsequent convictions.   See Deal v. United States , 508 U.S. 129, 132-34 (1993).

Because Bernhardt was convicted of the two separate and distinct drug violations,

his two § 924(c)(1) convictions related to those underlying violations qualify as a

previous and subsequent conviction.   Accordingly, the district court did not err in

enhancing his sentence for the second § 924(c)(1) conviction.

      AFFIRMED.

                                               ENTERED FOR THE COURT



                                               Stephen H. Anderson
                                               Circuit Judge




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